Copyright
Alpheus Todd.

On parliamentary government in England : its origin, development, and practical operation (Volume 1) online

. (page 47 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 47 of 85)
Font size
QR-code for this ebook


See also May, Parl. Prac. ed. ' Hans. P. v. 106, p. 1159.



UNDER PARLIAMENTARY CONTROL. 493

of the House of Commons, in the years 1862 and 1863,
in granting supplies for the purpose of constructing
fortifications on the British coast, this principle was
emphatically asserted, and notwithstanding the opposi-
tion of government, a clause was introduced into the What con-
Bill for providing funds for this purpose, declaring that q^rlYhe
whenever a contract shall be entered into by govern- approval

. -, . * of the

ment which involves the expenditure of a greater House of
amount than had been actually granted for such service,
such contract shall not be binding until it has lain for
one month on the table of the House of Commons with-
out disapproval, or has been formally approved of by
resolution, within that period. This clause was agreed
to by both Houses, and forms part of the statute. q

But, in 1874, ministers declined to present to Parlia-
ment a copy of the contract for building the new courts
of justice, on the ground ' that it would be injurious to
the public service and unjust to the contractor.' 1 But
in reply to a question, the House was informed of the
amount of the contract. 9

The remedy against illegal or oppressive acts by
Ministers of the Crown.

If a minister of the crown be guilty of any abuse Responsi-
of authority, or dereliction of duty, he is personally minsters
liable, under the law and constitution, for his conduct.* for me e a i

ftCtfl

But, in determining the liability of a pubhc functionary
for damage caused by his act to a fellow-subject, a"
seeming conflict between principles is noticeable, and
an anxiety in the breast of the law on the one hand to
assist the suitor, who perchance complains of wrong,



i 25 & 26 Viet. c. 78, 2. See in the H. of Corns, in regard to the

Smith's Parl. Rememb. 1862, p. 149. erection of the Law Courts, see Hans.

And see further on this subject, post, D. v. 210, v. 216, and v. 217.
p. 767. * Att.-Qen. in Hans. D. v. 176. p.

' Hans. D. v. 218, p. 345. 2121. .

Ib. p. 628. For previous debate?



494



LEGISLATION BY PUBLIC DEPARTMENTS.



Immunity
of minis-
ters in
courts of
law.



General
warrants.



Unity of
responsi-
bility
in the
Cabinet.



and on the other to protect the officer who, inflicting
an apparent injury, has perchance but done his duty. u
Any direct infringement of the law of the land by a
minister or officer of the executive government would
render the offender liable, in a court of justice, to pre-
cisely the same consequences as if he were a private
person. Nor would it be any justification, in an English
court of law, to plead the command of the sovereign
as the warrant for an unlawful act/ It may be stated,
as a general principle, that in assuming on behalf of the
crown a personal responsibility for all acts of govern-
ment, ministers are privileged to share, with the crown,
in a personal immunity from vexatious proceedings, by
ordinary process of law, for alleged acts of oppression
or illegality in the discharge of their official duties,
and are responsible to Parliament alone for acts of mis-
conduct in their official capacity. Nevertheless, the
courts of law have established certain rules which, so
far as they go, afford protection to the subject against
the irregular exercise of executive authority. Thus it
has been determined that general warrants, issued by a
secretary of state to search for and seize the author
or the papers of an author (not named) of a seditious
libel, are illegal. 1 Also, that a warrant issued by a
secretary of state, to seize the papers (generally) of the
author (named) of a seditious libel, is illegal. 7

By a decision of the Superior Court of Lower
Canada, in 1875, it was ruled, that an act of govern-
ment cannot be set aside in a court of law, on the
allegation that a majority of cabinet ministers had
sanctioned it, upon the representation and influence of
particular ministers, and (as it was afterwards alleged)

u Broom, Const. Law, p. 625. * Entick v. Carrington, Ib. 1030.

r See ante, p. 265. Broom's Const. Law, 525-617. See

w See ante, p. 343. the proceedings in relation to General

* Leach v. Money ; 19 State Trials, Warrants, P'arl. Hist. v. 16, p. 207.

p. 1001. Wilkes v. Wood, Ib. p. Hans. D. v. 77, pp. 905, 960.

1153.



UNDER PARLIAMENTARY CONTROL. 495

upon insufficient grounds ; for ' there is no division of
responsibility in a cabinet,' and ' the crown must be held
to have known what it was about.' z

This was an attempt, on behalf of a new ministry, to set aside a
transaction in real estate, authorised by their predecessors in office.
The court dismissed the action, for the reason stated above. ' The
irresponsibility of ministers of the crown in a provincial govern-
ment to a court of law for advice given to the crown, and' acts
consequent thereupon, was further maintained by the superior
court, in December 1877, in another action growing out of the same
case. a

Apart from the security afforded to the subject by Protee-
these decisions, the law accords to persons who are officials,
clothed with an official character a peculiar protection.
On grounds of political expediency all such persons are
preserved from liability to actions at law. Whether
the alleged liability arises out of contract or out of
tort, or from any matter of private and individual com-
plaint against a minister of the crown, for acts done,
or directed to be performed by him, in his official capa-
city, the ordinary tribunals of justice will afford him
special immunity and protection. b But if ministers of
the crown think fit, for reasons of public policy, to take
upon themselves the responsibility of directly infringing
an existing law, they are bound to apply to Parliament
for an Act of Indemnity, to relieve themselves, and
those who have followed their directions in the par-
ticular matter, from the legal consequences of their
conduct. On the same principle, the government is
bound to compensate all subordinate officers for losses



* Att.-Gen. v. Middlemlss, L. Can. to be held liable at law for an act

J. v. 19, p. 263. done by him in his official capacity

L. Can. J. v. 21, p. 319. See Irish L. T. Rep. v. 6, p. 25; Hans,

also Molson v. Chapleau and Lynch, D. v. 236, p. 611. Also Palmer v.

Montreal Legal News, v. 6, p. 222. Hutchinson, before the Privy Council

b Broom, Const. Law, pp. 617-623, on appeal from Natal, 6 L. R. App.

726. See also the case of Sullivan p. 619. And see cases cited in

v. Earl Spencer, showing that the Forsyth, Const. Law, pp. 84-88.
Lord-Lieutenant of Ireland was not



496



LEGISLATION BY PUBLIC DEPARTMENTS.



Their re-
sponsi-
bility to
Parlia-
ment.



incurred, or damages awarded against them, in the
execution of their duties.

Admitting the civil irresponsibility of the supreme power (includ-
ing ministers of state) for tortious acts, it cannot be denied that its
agents, the minor functionaries of government, are responsible to the
law for illegal proceedings, beyond the legitimate scope of their
derived authority, just the same as they are indictable for corrupt
practices or misdemeanour in office. But the government is morally
bound to indemnify its agent for the consequences of its own acts,
otherwise a public servant might have to answer to the law for acts
bond fide done by him, on behalf of the public, which, in contempla-
tion of law, injuriously affected others.

The constitutional remedy against an executive
government, for political crimes, or misdemeanours,
which may operate injuriously to private individuals
or against a minister of state who may be guilty of
injustice or oppression in the exercise of his administra-
tive functions is by an appeal to Parliament ; and
more especially to the House of Commons. Attempts
to obtain redress, under such circumstances, by resort
to the courts of law are unavailing ; inasmuch as such
complaints are not properly cognisable by these tri-
bunals, which have no jurisdiction to coerce or other-
wise control high public functionaries. d Whereas, the
House of Commons, as the grand inquest of the nation,
is fully competent to investigate every case of ministerial
abuse or misconduct, and to visit upon the offender
the consequence of his misdeeds. 6

In theory of law, the judgment and decision upon
every matter of state is that of the sovereign, who acts,



' See Broom's Const. Law, pp.
243,619-623,719. Also Clode, Mili-
tary Forces, v. 2, pp. 148, 177.
Hans. D. v. 218, p. 488 ; v. 219, p.
449. Thomas, Const. Law, p. 71. See
alsp Canada Supreme Ct. Rep. v. 7,
p. 570; v. 8, p. 1.

d See Cooley's article in Inter.
Rev. v. 3, p. 326.

See Judgment of Court of Queen's



Bench in case of The Queen v. The
Lords of the Treasury. L. T. Rep.
N.S. v. 26, p. 65; and debates
theeron in Hans. D. v. 210, pp. 61-
72 ; v. 211, pp. 504, 1868. And see
Wallace et al v. Ross. 2 Russell
and Chesley, N. Scotia Rep. p. 190.
See Hans. D. v. 180, pp. 1019-1022 ;
and see post, v. 2.



UNDER PARLIAMENTARY CONTROL. 497

according to his discretion, upon advice given him by a
responsible minister, who is sworn to keep the king's king's
counsel secret, and who may not disclose elsewhere the
nature of the advice given, without his sovereign's ex-
press permission. Nor is this secrecy enjoined merely
as a personal privilege or protection to the sovereign
or the minister, to be waived as they may think fit ; it
is founded upon constitutional principle and public
policy which unite in recognising the importance of
entire and unfettered freedom in any advice to be given
to the sovereign, and the necessity for preserving the
king's counsellors from being harassed by actions on
false pretences of malice or corruption.*

Every minister is directly responsible to Parliament
for his conduct in office, and for the advice he tenders
to his sovereign ; but he is responsible to no other
tribunal. If he be put upon his trial by Parliament, it
is right that he should be at liberty to disclose the
secrets of the council chamber, so far as they may
affect his personal responsibility for the acts under Council
review ; and permission to that end is invariably ac-
corded by the sovereign. But it is not right for a vul ged in
minister to disclose before a jury, or before an ordinary law.
court of law, the counsels of the crown, because these
tribunals have no power to follow up the matter, and
to sit in judgment upon the advice given to the sove-
reign by her ministers, or upon the acts of the sovereign
consequent upon such advice. Arid even if, on any
particular occasion, permission to divulge the advice
given by a minister should have been granted by the
sovereign, for the purpose of evidence in a court of law,
it is very doubtful whether the court would be justified
in allowing the disclosure to be made. In the case of
Irwin v. Grey, where the secretary of state for the
home department had been summoned as a witness, the

1 See the American practice, to the same effect, in Am. Law. Rev
T. 11, p. 164.

VOL. I. K K



498 LEGISLATION BY PUBLIC DEPARTMENTS.

court would not permit him to be questioned as to the
advice he had given to his sovereign ; and the case was
stopped by the judge, with the concurrence of the
court. g

On the same principle, public officers, summoned to give evidence
in a court of law, may attend with official documents in their
custody ; but if in the opinion of the secretary of state it should not
be for the benefit of the public service that the documents should be
produced, instructions are given to the officer to state that circum-
stance to the judge, who then invariably refuses to allow the pro-
duction of the documents. 11

In the case of Dickson v. Combermere and others, General Peel,
the secretary of state for war, who was one of the defendants,
attended, and gave evidence before the Court of Queen's Bench in
defence of an official act of his own, which had led to the removal of
the plaintiff from the lieutenant-colonelcy of a regiment of militia.
This evidence involved the disclosure of advice he had tendered to
the Queen in regard to the removal of Colonel Dickson ; and he in-
formed the court that he had obtained her Majesty's permission to
divulge the same. But after he had given his testimony, the chief
ega im- j us t,j ce i n f orm ed the jury that the secretary of state was responsible
cabinet to his sovereign and the country for the recommendations he had
ministers, made to the sovereign in this matter, and not to them ; and that,
unless they were of opinion that he had dishonestly and corruptly
abused the power entrusted to him, they could not hold him account-
able for his conduct. The plaintiff's lawyer at once admitted the
correctness of this decision, and withdrew the case so far as General
Peel was concerned. 1 In charging the jury upon the case of the
other defendants, who were high military functionaries, acting under
the immediate direction of the secretary of state for war, the chief
justice stated that unless the jury were of opinion that the matters
of complaint against Colonel Dickson, which occasioned his removal
from office, had been maliciously and unreasonably put forward,
with a view to his oppression and injury, and without probable
cause, they must find for the defendants. And that even if they
thought that General Peel, in recommending the sovereign to dis-
place Colonel Dickson, had acted harshly and wrongfully, they could
not on that account set Colonel Dickson right by returning a verdict
in his favour. Accordingly, a verdict was returned for the defend-
ants. The reporter, in commenting upon this case, points out very
forcibly that according to the analogy of the decision arrived at in

See ante, p. 346. 3 Post, and 225, p. 874.

Fin. p. 636. ' Dickeon v. Visct. Combermere, &c.

h Home Sec. Cross. Hane. I), v. 3 Post, and Fin. pp. 578-685.



UNDER PARLIAMENTARY CONTROL. 409

the above-mentioned case of Irwin v. Grey, as well as upon general Estab-
grounds of constitutional reasoning, the court ought not to have lished
permitted the disclosure by General Peel of the advice he had ten-
dered to his sovereign in his capacity of privy councillor. The
arguments adduced by the reporter in support of this position are
elaborate and convincing, and amply justify his conclusion that ' the
secretary of state, by reason of his high office and dignity and the
proximity of his position to that of the sovereign, is protected from
all liability by action and all responsibility save to his sovereign or
to Parliament, for acts done by him in his office as secretary, or by
way of advice to the sovereign as cabinet minister.J Further, in the
case of Cowing and others, against the secretary of state for war,
in July 1876, and January 1877, when the master of the rolls
refused an injunction, and decided against a petition of right sought
for upon frivolous grounds, alleging that there can be no injunction
against the crown, because the sovereign is the fountain of justice,
and ' even if the crown could commit a trespass, a subject could not
sue for it.' k

This view of the immunity which attaches to privy Legal i



councillors and high functionaries of state, in the per-



formance of their official duty, is corroborated and

T i n M i / T i officers of

applied to all responsible ministers of the crown, who state.
are entrusted with the direction of any particular de-
partment of government, by the decision in the case of
Oidley v. Lord Palmerston.

This was an action brought to recover, from the secretary-at-
war, a certain sum of money claimed by a retired clerk of the War
Office, as a part of his annual retired allowance, and which, though
voted by Parliament for such service, had been withheld by Lord
Palmerston, the secretary-at-war, for the purpose of liquidating
certain liabilities incurred by the said Gidley, to persons for whom
he had acted as agent. The court gave judgment for the defendant,
declaring that ' on principles of public policy, an action will not lie
against persons acting in a public character and situation, which,
from their very nature, would expose them to an infinite multi-
plicity of actions ; that is, to actions at the instance of any person
who might suppose himself aggrieved ; and though it is to be pre-
sumed that actions improperly brought would fail, and it may be
said that actions properly brought should succeed, yet the very



J Dickson v.Viscount Combermere 271. Hans. D v. 231, pp. 826, 829-
c. 3 Fost. and Fin. pp. 533, 534, n. 16. v. 235, p. 600.
k Com. Pap. 1877, v. 69, pp. 267,



500 LEGISLATION BY PUBLIC DEPARTMENTS.

liability to an unlimited multiplicity of suits would, in all proba-
bility, prevent any proper or prudent person from accepting a public
situation at the hazard of such peril to himself.' 1 Also in the case
of T. G. Tufnell, who sought, by petition of right, to be indemnified
for the loss of a permanent military appointment in consequence of
his being compulsorily retired on half-pay. The petition was dis-
missed on the ground that the crown had an absolute right of
dismissal in all such cases. m

Seeing then that it is an established principle in our
constitutional system that ministers of the crown are
accountable to Parliament, alone for personal acts of mis-
conduct, or dereliction of duty, in the discharge of their
official functions, we shall hereafter explain the course
to be pursued to substantiate before Parliament any
just ground of complaint against an individual minister,
and investigate the principles which have heretofore
governed Parliament in the determination of such
questions.

1 3 Bro. and Bingharo, p. 287. L. T. Rep. N. S. v. 34, p. 838.
And see the comments on this de- n See post, v. 2.
cUion, in 3 Fost. and Fin. p. 535, n.



ROYAL PREROGATIVE IN MATTERS ECCLESIASTICAL. 601



CHAPTER X.

ROYAL PREROGATIVE IN MATTERS ECCLESIASTICAL.

THE next prerogative to engage our attention is that Prerogr.-

tive in

which provides for the supremacy of the crown in matters
matters ecclesiastical.

This prerogative is exercised in three ways : (1) By
the enactment of laws, with the consent of Parliament,
to determine matters affecting the Church as a national
institution, and by convening and licensing in certain
cases the proceedings of Convocation. (2) By the
appointment of bishops and other principal dignitaries
of the Established Church. (3) By the jurisdiction of
the crown over all ecclesiastical causes in the last resort.*

'All jurisdiction within the realm, spiritual as well
as temporal, is derived from the sovereign alone ' ; that
is to say, all jurisdiction which is of a coercive cha-
racter, and which can be enforced by an appeal to any
tribunal or court of justice. Spiritual authority which
is exercised merely in fora conscientice cannot be enforced
in a court of law. Moreover, ' the power of pronounc-
ing judgment in foro exteriori, coactive judgments,
having effects recognised by the temporal law, depends
always (for its exercise by an ecclesiastical tribunal) on
the temporal power.' b

* See Cripps, Laws of Church and ment by Dr. Phillpotts, Bishop of

Clergy. Petersdorff New Abridge- Exeter, in his corresp. with the Rt.

ment, v. 6, p. 214. Ed. Rev. v. 128, Hon T. B. Macaulay, pub. by Murray

p. 251. Dr. Phillpotts, in Welln. in 1861, p. 7. See "also Ed. Rev. v.

Corresp. 3rd S. v. 5. pp. 201,220, 121, p. 153, Hans. D. v. 182, pp. 304-

243. 307.

" Stat. 26 Geo. III. c. 84. State-



602 THE ROYAL PREROGATIVE

Our remarks in regard to this prerogative will
admit of the following arrangement : (1) A considera-
tion of the position of the Church of England in the
mother-country. (2) Its position in the colonies. (3) Its
position in foreign countries. (4) The obligations of
the Act of Uniformity.

I. The position of the Church of England in the Mother-

country.

Legal The crown is the legal head of the Church esta-

positionof ,,.,,. , , ,, T-T i i

the Estab- bhslied in the realm of England ; the interpreter of the
ctmrch meaning intended to be conveyed by the Thirty-nine
Articles, the Liturgy, and other recognised formularies
of the Church ; and the depository of the ultimate
appellate jurisdiction in all causes and matters eccle-
siastical. All appellate authority which, previous to
the Reformation, was exercised over members of the
Established Church by the Pope, is now by statute
vested in the Crown of England ; and every court,
ecclesiastical or civil, held in England must be held in
the name and under the authority of the sovereign. 3

The kingdom of England and Wales is divided into
thirty-two dioceses, including that of Sodor and Man ;
the respective limits of which have been defined by Acts
of Parliament. 6 By the laws of the realm no person
can be consecrated to the office of bishop in the Esta-
blished Church of England without the license of the
crown to the dean and chapter for the election to that
office of the person named in a letter missive accom-
panying the same. A royal mandate, under the great

'Royal Declaration prefixed to p. 226. The Bishop of Oxford's speech,

the Thirty-nine Articles. lb. v. 184, p. 518. And Ld. Chanc.

d 25 Henry VIII. c. 19. 1 Eliz. Cairns and Ld. Westbury, on the

c. 1. 16 Charl. I. c. 11. 13 Charl. Supremacy of the Crown, lb. v.

II. c. 12. See debate in II. of Lords, 193, pp. 1227-1233. Montagu Bur-
Hans. D. v. Ill, p. 598, on the Bishop rows, Parliament and the Church of
of London's Bill on Appeals to the England, 1875.

Privy Coun. from Keel. Courts. The Act 6 & 7 Will. IV. c. 77
Ld. Chan, speech, in Hans. D. v. 168, 38 & 39 Vic. c. 34 ; 41 & 42 Vic. c. 68.



IN MATTERS ECCLESIASTICAL. 603

seal, for the confirmation and consecration of the
proposed bishop is also necessary. And if the dean church,
and chapter defer or delay their election above twelve
days from the receipt of the license, letters patent may
be issued by the crown, conferring the episcopal office
upon the nominee of the crown. The confirmation of
the election of a bishop by the archbishop is simply
ministerial, and merely a matter of form.* The crown
has no power, by its mere prerogative, to create new
dioceses, in any part of the kingdom. It must have
recourse, for such a purpose, to the supreme authority
of parliament. The crown, as legal head of the Church,
may command the consecration of a bishop to an exist-
ing see, but it has no right to create a new ecclesiastical
corporation, whose status and authority should be re-
cognised by the community at large. Accordingly, when
four new bishoprics were constituted by Henry VIII.,
the assistance of Parliament was invoked to give effect
thereto. g In 1836, when the bishoprics of Manchester
and Eipon were constituted, and in 1875 upon the
establishment of the see of Saint Albans, and ecclesias-
tical jurisdiction conferred upon the bishops, it was
under the provisions of an Act of Parliament. 11 Suffra-
gan bishops also are appointed under authority derived
from parliament ; and though the selection of two
candidates for the office is vested in the particular
archbishop or bishop on whose behalf a suffragan is to
be nominated by the crown, it is not compulsory on
the crown to choose either of them. Government may
enquire as to the persons intended to be proposed as



' 25 Henry VIII. c. 20, .14. See 31 Henry VIII. c 9. This Act

the case of Bishop Hampden, Q. B. is not found in the ordinary ed. of

Rep. N.S. v. 11, p. 483. And Ar- the statutes, but it is cited in the judg-

nould, Life of Oh. Justice Denman, v. ment of the Privy Council in the case

2, p. 237. And see J. W. Lea, on The of Bishop Colenso.

Bishops' Oath of Homage, Riving- h 6 & 7 William IV. c. 77. 38 &

tons, 1875. And see Com. Debates 39 Viet. c. 34.
on the Conge" d'elire Bill in 1877.



504



THE ROYAL PREROGATIVE



Supre-
macy
of the
crown.



Convoca-
tions.



Diocesan
ynods.



suffragans in any given case before consenting to enter-
tain the question at all. 1

The sovereign of this realm, as being the ' supreme
governor on earth of the Church of England,' has
authority to control its ' external policy.'

In the Acts of Henry VIII. and of Edward VI., the king is
styled ' the supreme head in earth,' next under Christ, of the
Church ; but as this phrase gave offence to many, and was rejected
by Queen Elizabeth, it was changed, in her reign, to that of
1 supreme governor. 'J

All ecclesiastical synods or convocations of the Church



Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 47 of 85)