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the decision of the Privy Council, ordering the removal of the West
Riding Assizes from York to Leeds, instead of to Wakefield, might
be reconsidered. On June 17, the Queen's answer to this address
was reported. It set forth that the assizes for the West Riding had
been appointed to be held at Leeds 011 August 10, and that if it
should hereafter appear expedient to appoint some other place for
holding the said assize, the subject should be again referred for the
consideration and advice of the Privy Council. 8

On March 22, 1866, a resolution was carried in the House of Plans for
Commons, upon division, against the government : ' That in the Palace of
opinion of this House, it is not expedient that the competition for Justlce -
the building of the New Courts of Justice should be limited to six
architects only.' Subsequently the House was informed that, in



' Hans. D. v. 171, pp. 981-984.

Ib. v. 176, p. 1598 ; and v. 193, p. 1823.

VOL. I. G



450 THE ROYAL PREROGATIVE

Prece- consequence of this resolution, the number of competing architects
had been extended to twelve.*

On June 25, 1868, the House of Commons resolved, on a
division, against ministers, ' That in the opinion of this House, the
Peel statue ought to be removed from its present site in New
Palace Yard.' u

On June 29, 1868, a resolution in favour of the employment of
discharged soldiers in government situations was proposed and dis-
cussed in the House of Commons. But it being urged that ' it
would be a great mistake to endeavour to bind the judgment of the
House or of the government ' upon this question, it was withdrawn. v

On July 8, 1870, an address to the crown was carried in the
House of Commons against the government, praying that no build-
ings might be erected on that portion of the Thames Embankment
which is reserved to the crown, and which has been reclaimed from
the river at the cost of the metropolitan ratepayers. On July 19
her Majesty's answer to this address was reported. In the following
session, on motion of the prime minister, a select committee was
appointed to consider the use to which this reclaimed land should be
appropriated. This committee reported on August 3, 1871. w

On August 5, 1870, a resolution was moved in the House of
Lords, calling in question a recent change made by the Charity
Commissioners in the administration of their trust. But the Lord
Chancellor having pointed out the irregularity of this mode of pro-
ceeding the motion was withdrawn. x

On July 5, 1872, Mr. Ayrton (commissioner of works) referred
to a resolution passed by the House of Commons in 1867, y con-
demning the elevation for the London University, whereupon, though
the building had been partly erected, the Office of Works was com-
pelled to take it down and prepare a new elevation in deference to
the opinion of the House. If any similar resolution should be
passed, in regard to other designs for buildings, ' it would be the
duty of the Office of Works to reconsider the subject.' z

On April 21, 1874, a motion was submitted to the House of
Commons that ' abstracts and summaries ' of official correspondence
presented to Parliament ought to have the name of the selector or
editor appended, as a guarantee of accuracy and sound judgment
in their compilation. But the motion was negatived without a
division.

The Queen's ministers are not only the rightful

* Hans. D. v. 183, p. 181. See a w Ib. v. 225, p. 1927.
further discussion on this subject, Ib. * Ib. v. 203, p. 1572.
p. 1178. ^ Ib. v. 187, p. 1463.

u Ib. v. 192, p. 2149. * Ib. v. 212, p. 699.

* Ib. v. 193, pp. 314-323.



IN MATTERS OF ADMINISTRATION. 451

guardians of the prerogatives of the crown in Parlia- Papers

-, -, i , concern

ment, but it also devolves upon them to protect the ingpri-
liberty of the subject, and the interests of private indi- ^^
viduals and associations, who have no direct representa-
tion therein, from the assumption by Parliament of
arbitrary and unjustifiable authority.* On this principle
the government have uniformly resisted all attempts, on
the part of either House, to obtain, whether by their
own order or through an address to the crown, any
documents or information concerning the affairs of
private individuals, 1 * or to sanction the appointment of
committees to enquire into private and personal affairs,"
unless presumptive proof of delinquency, calling for
parliamentary investigation, could be shown. d This
rule includes the case of private educational institutions
not being in the receipt of public money. 6

On July 24, 1862, it was stated in the House of Commons, by
the secretary for Ireland, that government had no authority to call
for a certain educational return from the Roman Catholic bishops
in Ireland/

It has even been held to apply to the affairs of private Private
companies, and of ' public institutions which are not in panics,
receipt of assistance from public funds. ' g But it was &c-
distinctly laid down by Sir Eobert Peel and Lord John



* See the debate in the H. of p. 634.

Corns, on the Ancient Monuments e Hans. D. v. 201, p. 71.

Bill. Hans. D. v. 218, pp. 579-595. d Mir. of Parl. 1831-2, p. 1237;

For the constitutional doctrine in 1840, p. 2053.

the United States as to the sacred- e Ib. 1836, p. 873 ; 1840, p. 1772.

ness of private rights, see Judge f Hans. D. v. 168, p. 737.

Miller's decision, in 1874, 20 Wallace * Mir. of Parl. 1837-8, p. 3672 ;

Sup. Ct. Rep. p. 662. Hans. D. v. 73, p. 1759. See de-

b Mir. of Parl. 1830, p. 449 ; 1831, hates in the H. of Corns, on May 23,
p. 193 ; 1833, p. 1614 ; 1836, p. 125. 1876, on a motion for an address for
Hans. D. v. 199, p. 998. Ministers detailed statements of the property,
will often require motions asking for income, and expenditure of the City
information affecting a particular class of London Guilds or Companies ; and
of individuals to be made numeri- on April 10, 1877, on a motion in
cal, instead of nominal, in order to favour of the introduction, by minis-
screen private persons from unneces- ters, of some Bill to empower the
s'ary publicity. Hans. D. v. 169, p. crown to enquire into the same.
1581. Ib. v. 218, p. 2026; v. 232,

a a 2



452



THE EOYAL PREROGATIVE



Pariia- Russell, in the case of the Royal Academy, that the
mentand inquisitorial jurisdiction of Parliament could not be

DriVJltG t/

corpor- limited to such ' public institutions ' only as were the
atlon9 ' recipients of public money ; but that ' when an institu-
tion is established to assist in promoting the cultivation
of the arts, or other strictly public object, it could not
be denied that the House had a right to enquire into
its affairs, even though it did not receive public aid.' h
And on a later occasion it was declared, by Sir Eobert
Peel, that ' where Parliament has given peculiar privi-
leges to any body of men 1 [as, for example, banks or
railway companies], it has a right to ask that body for
information upon points which it deems necessary for
the public advantage to have generally understood.'
The great point to be aimed at in such enquiries, he
considered to be, ' that while you extract all the infor-
mation the public require to have, you should, at the
same time, avoid all vexatious interference in the details
of the business of the respective undertakings.' 3

On April 9, 1867, Sir Morton Peto moved for the appointment of
a select committee ' to enquire into the means adopted by the London,
Chatham, and Dover Railway Company for raising the share capital
and exercising their borrowing powers under the various Acts of
Parliament, authorising the construction of the main line and its
extensions and branches.' He did so professedly on public grounds,
but mainly for the purpose of obtaining a public scrutiny into his
own conduct, as a director of the said company, in order to refute
certain charges affecting his personal character, which had been
preferred against him in that capacity. The chancellor of the ex-



h Mir. of Parl. 1839, pp. 4238,
4503. Hans. D. v. 220, p. 295.

' See the proceedings in the House
of Lords, iu regard to an order that
tlie Corporation of the City of Lon-
don should lay before the House a
detailed account of their income and
expenditure between certain years ;
the Corporation having applied to
Parliament for an Act to enable
them to increase their revenues, by
imposing a tax on coals. Mir. of
Parl. 1829, pp. 1803, 1834.



J Mir. of Parl. 1840, p. 4840.
And see Ib. 1828, p. 825. See
further, in regard to the principle in
question, showing the respect enter-
tained by both Houses for private
rights, H>. 1837, pp. 787, 997, 1030;
1838, p. 5400; 1839, p. 3421. Hans.
D. v. 74, p. 25 ; v. 131, pp. 135, 785 ;
V. 166, p. 1103. And on the general
question of the power of Parliament
to compel the production of docu-
ments, see Smith's Parl. Remem-
brancer, 1860, p. 29.



IX MATTERS OF ADMINISTRATION. 453

chequer (Mr. Disraeli) objected to the motion as an unprecedented
attempt to obtain a parliamentary investigation into matters with
which the House of Commons has no connection or concern. Mr.
Gladstone agreed that the mover had no locits standi for such a pro-
position. He added, that the motion might perhaps be justified ' on
the ground that railway companies solicit special parliamentary
powers, and that Parliament itself claims greater powers over rail-
way companies than it does over other companies.' Still, as a
question of policy, he admitted that the objection was unanswerable,
and that, if the motion were acceded to, it would probably occasion
very considerable embarrassment, in the conduct of the enquiry, and
undoubtedly great future embarrassment as a precedent applicable to
other companies in positions more or less analogous. Whereupon the
motion was withdrawn. 11

Again, no motion for papers should contain argu-
mentative matter, or should assume facts of which the
House was not officially cognisant. 1

It is ' the rule of Parliament, that no papers shall be

t

laid on the table of either House, unless some sufficient ground for
reason have been stated for their production.' m It is
irregular to move for the production of papers merely
to further the interests or views of private persons, or
except for the purpose of founding, or facilitating,
" parliamentary proceedings. 11 Government have refused
to grant papers, ' unless it be intended to found some
proceedings upon them.'

The foregoing precedents, it is hoped, will serve to Summary

l i i j.1. i.-i i.- i *.' f in regard

explain more clearly the constitutional position 01 to this
Parliament in regard to the prerogative of administra- 7 e rosa "
tion. Without denying the abstract right of either



k Hans. D. v. 186, pp. 1339-1349. m Ld. Melbourne, Mir. of Parl.

And see the debate on a motion, 1838, p. 5387.

afterwards withdrawn, in relation to n Ib. 1831, p. 2248 ; 1833, p. 547.
the refusal of the Salters' Company Ib. 1839, p. 4422. But see the
to grant a site for a Roman Catholic following cases, wherein members of
church on one of their estates in Parliament, being in possession of
Ireland, upon the ground that they valuable statistical or other informa-
were obliged by their charter ' to tion, obtained orders, or addresses,
encourage Protestantism and to dis- for the production of the same, to
courage Popery in the North of Ire- one or other of the Houses of Par-
land.' Ib. v. 187, p. 891. liament. Ib. 1830, Sess. 2, p. 416 ;

1 Hans. D. v. 218, p. 2023. 1838, p. 5273 ; 1839, p. 4372.



464 THE EOYAL PEEEOGATIVE

summary. House to address the crown, or to institute enquiries
by select committees, upon any matter, they will show
the great public inconvenience attending an attempt on
the part of Parliament to interfere with the ministers
of the crown in the details of government, the inexpe-
diency of applications for documents which the respon-
sible advisers of the crown consider it imperative to
withhold, and the unwarrantable nature of any intrusion
by Parliament into the private affairs either of indivi-
duals or of corporate bodies, without just cause. So
long as any existing government retain the confidence
of Parliament, it is unsafe and unwise, as a general
principle, to interfere with them in matters of adminis-
tration. Those who are directly responsible for the
conduct of public affairs are they who possess the
necessary information for the proper discharge of the
same. Parliament exercises a direct control over the
ministers by whom all public affairs are transacted. It
has a right to enquire into every grievance or abuse of
power, whether on the part of those ministers or of
any other public functionary. It may also express its
opinion in regard to any act of the government ; and
it not unfrequently happens that the mere declaration
of opinion in Parliament upon some objectionable de-
partmental regulation, unaccompanied by any formal
motion, suffices to induce the government to modify
their plans, conformably to the views entertained by
the House. p But all this is very different from an
attempt on the part of the legislature to usurp the
functions of the executive, or from the endeavour by
the House of Commons to compel the adoption of their
opinions upon a question of administration, irrespective
of those of the government or of the other Chamber;



p See the case of the Treasury discussed in the House of Lords on
Warrant respecting unpaid letters, February 22 and 24, 1869.



IN MATTERS OF ADMINISTRATION. 456

a proceeding which must tend to destroy the harmony
which should exist between the different powers in the
state, and to transfer the executive authority from the
hands of responsible ministers into those of an irrespon-
sible and uncontrollable democracy.* 1



q See remarks on this head in Stockmar'e Mem. v. 2, pp. 449, 645.



456 THE ROYAL PREROGATIVE



CHAPTEE VIII.

CIRCUMSTANCES UNDER WHICH PARLIAMENT HAS A RIGHT
TO INTERFERE, IN ORDER TO RESTRAIN THE ILLEGAL
EXERCISE OF EXECUTIVE AUTHORITY.

Abuse of WHILE Parliament is constitutionally debarred from
authority, interfering, by order or resolution, with the ordinary
routine of government, except for the purpose of ex-
pressing an opinion as to the expediency of any par-
ticular proceeding, or line of policy it is otherwise if
the crown itself attempts to encroach upon the func-
tions of Parliament, and endeavours to accomplish by
its own action that which cannot lawfully be effected,
except with the sanction and co-operation of Parliament.
It is then the duty of Parliament to interpose, and to
call to account the ministers of the crown who are
responsible for the abuse or excess of executive autho-
rity. In like manner, if any individual minister is
guilty, in his official capacity, of any illegal or oppressive
act, it is the privilege of the injured party to apply to
Parliament for redress; and the matter of complaint
being substantiated, Parliament will hold the offending
minister personally responsible for his misconduct.

There are certain forms of procedure, of ordinary
occurrence in the administration of public affairs by the
ministers of the crown, which need to be strictly con-
fined within constitutional limits, lest they should become
the instruments of oppression or misgovernment. These
are The Issue of Orders in Council and Eoyal Pro-
clamations ; and of Minutes of Committees of Council,



IN MATTERS OF ADMINISTRATION. 457

and other Departmental Regulations; and (in the next
chapter) Legislation by Public Departments ; and the
entering into Contracts by Government Departments
for the public service. The proper limits of executive
authority in relation to each of these administrative
acts will be briefly explained. We shall then proceed to
define the responsibility which attaches to individual
ministers of state for personal acts of misconduct in
their official capacity.

Authority of the Crown in the Issue of Orders in Council
and Royal Proclamations.

The legislative function properly belongs to Parlia- Limited
ment, and no single branch thereof may legislate without of theTex-
the concurrence of the other two. 8 The executive has ecutive -
a limited power of legislation by Order in Council, arid
rules framed by departments of state, but only where
the exercise of such power has been authorised or
sanctioned by Parliament. It is a fundamental law of
the English constitution, that the sovereign can neither
alter, add to, nor dispense with, any existing law of the
realm. b

This important point was first established beyond Orders in
dispute in the reign of James I., by the proceedings in
Parliament upon the case of Bates, an English merchant,
who refused to pay a duty on currants imported into
the country from abroad, which duty was sought to be
levied by the sole authority of the king. The Court of
Exchequer, in 1606, sustained the claim of the crown;
but when the matter was discussed in the House of
Commons, it was shown that this decision was contrary
to the provisions of the Great Charter, and therefore
void. It was further alleged that the sovereign could



a See ante, p. 407.

b Thomas, Leading Cases in Con&t. Law, pp. 5, 11.



458 THE ROYAL PREROGATIVE

Taxation not, without the assent of Parliament, impose a duty
on any article of merchandise imported into or exported



crown



illegal. from the country ; or, in fact, any duty whatsoever
either upon foreign or domestic commodities, whether
in time of war or peace. The conclusions arrived at
upon this occasion were embodied in a Petition of
Grievances, which was addressed by the House of
Commons to the king, in the year 1610, and favourably
received by his Majesty.

This important doctrine was confirmed, in the
following reign, by the celebrated case of Eex v. Hamp-
den, wherein, notwithstanding that the contrary doctrine
was asserted by a majority of the judges, Parliament
annulled the judgment, and by the Statute 16 Car. I.
c. 14 declared that the sovereign cannot, without the
consent of Parliament, assess or levy ship-money upon
the subject.* 1

The mode whereby the Stuart sovereigns sought to
enforce their unconstitutional claims of levying taxes
upon the people, in derogation of the legislative func-
tions of Parliament, was by the issue of royal procla-
mations and orders emanating from the Privy Council.
At that period the Privy Council was still the great
governing body in the state, by means of which the
will of the sovereign was promulgated and enforced.
The king's government was carried on through the
instrumentality of Orders in Council, and by the issue
of royal proclamations, which were put into execution
by the subordinate officers of the crown.

This ordaining power of the crown in council was the
ancient method whereby the crown exercised its legis-
lative functions; but as the functions of Parliament, as
sharing sovereign legislative power, gained recognition,
the constitutional principle was established, that the
king in council may not make any ordinance contrary



Broom's Const. Law, pp. 247-305. d See Ib. pp. 306-370, 401-408.



IN MATTERS OF ADMINISTRATION. 459

to the common law, or the ancient customs of the realm,
and the statutes ordained in Parliament. The principle
has been distinctly recognised since the close of the
fourteenth century ; e and was subsequently reiterated
and confirmed by the Bill of Eights. The ancient pre-
rogative of the crown in legislating by orders in council
has been subjected to the control of Parliament, and is
now mainly exercised as a deputed and not as a preroga-
tive power. The crown still retains the right to regulate
various details of administration by its own prescriptive
authority, but it is an admitted principle that the
sovereign has no right, by a mere order in council,
either to sanction a departure from the requirements of
an existing law, or to interfere with the established
rights or privileges of any class of persons within the
realm. It is competent to the crown to declare and
enforce, by proclamation, the execution of any existing DI S -
law, but it is not within the power of the crown, pow
either to add to, alter, or dispense with any law of the
land. f

Following the example of the Church of Eome, the
sovereigns of England, from an early period, claimed
the right to dispense with the laws of the land, by the
issue of proclamations, and by making grants or decrees,
' non obstante any law to the contrary.' In this way
they assumed a power, virtute coronce, to dispense with
existing laws, or with the penalties consequent upon a
breach of them ; or else they undertook to dictate to
the people in respect of matters indifferent, and in re-
gard to which perfect liberty of action ought to have
been allowed. g The current of authority indicates that
the prerogative of dispensing by non obstante with Acts



See Stubbs, Const. Hist. v. 2, see Ch. Just. Cockburn's charge in

pp. 572, 584. tha case of the Queen v. Nelson and

f See 1 Coke's Inst. 120A n, 4. Brand, p. 37. 8vo. L. 1867.
Broom's Const. Law, p. 374. And e Cases cited, Broom, pp. 375-396.



4GO THE ROYAL PREROGATIVE

of Parliament was, subject to certain restrictions, re-
cognised in former times as vested in the crown, and
was repeatedly exercised during the sixteenth and
seventeenth centuries. The use and abuse of this
prerogative occasioned repeated conflicts between the
crown and Parliament and the courts of law, and
eventually cost King James II. his crown. 11 This branch
of the royal prerogative was finally annihilated by the
Bill of Eights, which declared that ' the pretended
power of suspending of laws, or the execution of laws,
by regal authority, without consent of Parliament, is
illegal ; ' and that ' the pretended power of dispensing
with laws, or the execution of laws, by regal authority,
as it hath been assumed and exercised of late, is illegal/
' Since then no one has presumed to advocate the exis-
tence of a dispensing power, under any circumstances
whatever, as inherent in the crown.' 1

Orders or From the epoch of the Eevolution of 1688, when-
fions. " ever the crown has ventured, upon occasions of public
emergency, to issue royal proclamations or orders in
council, which appeared to sanction any departure from
the laws of the land, the necessity for such a proceed-
ing on the part of government has been narrowly in-
vestigated by Parliament ; and when it has been shown
to have been illegal, although justifiable, acts of in-
demnity have been passed, to exonerate all persons
who have advised or carried into execution the same.*
Legislation of this kind is a parliamentary acknow-
ledgment of the principle that, in times of danger or
emergency, the crown, acting under the advice of re-
sponsible ministers, may properly anticipate the future
action of Parliament, by a temporary suspension of
certain classes of statutes. k Abstractly, the crown has



h Broom, pp. 494-507. Stubbs's J Ib. pp. 379, , 508, n.
Const. Hist. v. 2, p. 580. k Cox, Erig. Govt. p. 29. Camp-

1 Broom's Const. Law, pp. 507, bell's Chauc. v. 5. p. 267.
508.



IN MATTERS OF ADMINISTRATION. 401

no constitutional right to issue any such orders or
proclamations ; but, in the words of Sir Eobert Peel,
* Governments have assumed, and will assume, in ex-
treme cases, unconstitutional power, and will trust to
the good sense of the people, convinced by the necessity
to obey the proclamation, and to Parliament to indem-
nify the issuers.' 1

Nevertheless, with the important limitations above orders in
referred to, considerable powers are still inherent in counci1 '
the sovereign in council ; and express authority for the
issue of orders in council is frequently conferred upon
the crown by legislative enactment. ' A large propor-
tion of what may be called the details of legislation
rests upon the authority of orders in council, some of
which are issued by her Majesty in virtue of her pre-
rogative, while others derive their force from the pro-
visions of Acts of Parliament.' It is competent to a
court of justice to enquire into the validity or accu-
racy, in the statement of alleged facts of an order in
council, duly passed and gazetted. As examples of
the variety and importance of the subjects to which
"this form of quasi-legislation is applicable, it may be
stated that orders in council, or royal proclamations
which are usually issued in pursuance of the same, are
promulgated for the assembling, prorogation, and dis-
solution of Parli ament ; for declaring war ; for confirm-
ing or disallowing the Acts of Colonial Legislatures ; for



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