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would explain the facts of the case. The Duke of Wellington (the
premier) opposed the motion. He stated that cases of this kind,



T Hans. D. v. 200, p. 423 ; v. 202, * Com. Pap. 1881, v. 70, p. 391.

p. 727. y Com. Jour. v. 74, p. 690.

" Ib. v. 217, p. 41. Amos, Fifty * Parl. D. N.S. v. 2, p. 871.

Years Bug. Const, p. 435. * Mir. Parl. 1841, p. 1894.



566



Prece-
dents.



Lord
Urough-
am's re-
solutions.



Chartist
prisoners.



though not entirely exempt from the inquisition of Parliament,
ought to be least liable to enquiry by either House of any of the
royal prerogatives ; that, in the present instance, no sufficient par-
liamentary ground had been shown to warrant the House in de-
parting from its ' usual practice and principles not to enquire into
the exercise of this branch of his Majesty's prerogative.' The duke
was followed by the lord lieutenant himself, who justified his con-
duct towards Mr. Macdonnell, alleging that the matter had been
thoroughly investigated before the royal clemency had been ex-
tended to him. The motion, for papers was negatived without a
division. 15

On August 6, 1839, Lord Brougham proposed, an the House of
Lords, some resolutions respecting the administration of criminal
justice in Ireland, more particularly in respect to the principles
which should guide the exercise of the prerogative of mercy, and
declaring the mode in which this prerogative ought to be ad-
ministered. Notwithstanding the opposition of government, these
resolutions were agreed to. On the following day, Lord John
Russell (the premier) adverted to this vote, and stated that the
proposed practice in the mode of exercising the prerogative of mercy
was utterly inconsistent with that which had been hitherto pursued
by secretaries of state in their recommendations to the crown, and
from which it would be exceedingly inconvenient to depart ; and
that it was not his intention to make any alteration whatever. If,
instead of resolutions, a Bill had been passed, then of course he
would be bound to obey the law. Meanwhile he should consider
himself justified in adhering to the present practice. Accordingly
upon an enquiry being made of the ministry, at the next session,
whether a certain commutation of sentence had taken place in con-
formity with principles set forth in the aforesaid resolutions, they
declined to give any answer. At the same time it was observed
that, if a formal motion were made on the subject, the government
would be prepared to discuss the question. d

On May 25, 1841, Mr. Duncombe proposed an address to the
Queen, praying her to take into her merciful consideration the cases
of all persons confined in England and Wales for political offences ;
referring specially to those misguided men who had been led astray
by Chartist leaders (now undergoing sentence of banishment), and
were suffering the penalties of the law. Viewing the object of the
motion to be an attempt to obtain from the crown, through the
interposition of the House of Commons, a remission of the sen-
tences of these prisoners, Sir Robert Peel (although at the time in



JNJir. Parl. 1829, p. 1255. Ib. 1839, p. 4803.

" Ib. 1840, pp. 1702, 1717.



IN PARDONING OFFENDERS.



567



Opposition) strenuously opposed it. He urged that the considera-
tion of such cases should be left ' exclusively with the crown ; ' that
the government, in exercising the prerogative of mercy, ' ought not
to be influenced by any opinion which the House of Commons
might express'; ' and he asserted it to be a dangerous precedent for
the House to ' fetter the discretion and judgment of the crown by
expressing any recommendation on such subjects.' Acting on this
principle, when secretary of state, he had himself resisted a motion
for an address for the remission of the remaining term of Mr.
Hunt's imprisonment in Ilchester gaol ; which was an attempt to
induce the House to depart from that which had been its unvaried
practice ever since the Revolution, namely, ' that nothing but ' cir-
cumstances of an overwhelming nature should tempt the House to
interfere with this most important prerogative.' 6 Lord John
Russell (the colonial secretary) also opposed the motion, and
pointed out the general ill effects of such an interference on the part
of the House, although admitting that there might be exceptional
cases. The motion for the address was negatived by the casting
vote of the Speaker, who stated that he considered the proposed
vote was an interference with the royal prerogative. 1

On March 10, 1846, Mr. Duncombe proposed an address to the
Queen, that she would be graciously pleased to consider the recent
petitions to Parliament in favour of a restoration from exile of the
state prisoners Frost, Williams, and Jones ; but Macaulay, Sir
Robert Peel, Lord John Russell, and other leading statesmen, while
admitting the abstract right of the House to advise as to the exer-
cise of this or any other prerogative, all concurred in opposing the
motion, as being of a dangerous tendency, and a departure from
the rule imposed upon themselves by the discretion of former
Houses of Commons, of non-interference with the exercise of certain
prerogatives, which should be left to the unfettered discretion of the
executive government. The address was negatived by a large
majority.^

On June 30, 1864, it was moved in the House of Lords, to
resolve that, considering the extent to which agrarian outrages pre-
vail in certain counties in Ireland, and the difficulty which exists
in obtaining convictions for such offences, this House is of opinion
that the power of the lord lieutenant of Ireland to remit the whole
or a portion of the sentences of persons convicted of such crimes
should be exercised with greater care and circumspection ; and this
House observes with regret that the lord lieutenant ordered the



Prece-
dents.



Frost,
Williams,
and Jones.



Lord
Lieu-
tenant of
Ireland.



e Parl. D. N.S. v. 7, p. 34. Case of the Dorchester prisoners, Mir.

f Mir. Par!. 1841, pp. 1894-1903. Parl. 1835, p. 1568. Case of the

11. 1839, p. 1715. Canadian prisoners, Hans. D. v. 6G, p.

Hans. D. v. 84, pp. 881-921. 23?



563 THE ROYAL PREROGATIVE

Prece- release of certain prisoners (therein named) under sentence for an
agrarian offence, upon grounds which appear to be insufficient. The
motion was opposed by the government, on the ground that nothing
should induce the House to agree to such a motion unless it could
be distinctly shown ' that there had been a very gross want of dis-
cretion in the administration of the prerogative of mercy, or that
the person exercising it had been influenced by some corrupt
motives.' 11 The sense of the House was evidently against the
motion, and it was withdrawn.

Thorn's In 1838, however, a case occurred of sufficient gravity and im-

case. portance to give rise to discussions, in both Houses of Parliament,

as to the circumstances under which the prerogative of mercy had
been exercised, and which led to the appointment of a committee
of enquiry by the House of Commons. A person of the name of
Thorn had been convicted of perjury, and sentenced to transporta-
tion for six years. Shortly after conviction, it was discovered that
he was insane j he was thereupon transferred to a lunatic asylum,
where he remained four years, when he received a free pardon, and
was discharged. Not long afterwards, his insanity assumed a more
violent aspect, and he became concerned in a riot, which led to
serious loss of life, he himself also being killed. This sad cata-
strophe was brought under the notice of Parliament, and documents
explanatory of the case were called for in both Houses. A motion
for the appointment of a committee of enquiry into the circum-
stances attending the discharge of Thorn was submitted to the
House of Commons, the mover commenting severely upon the con-
duct of the secretary of state (Lord John Russell) in exercising
the prerogative of mercy in favour of such a dangerous character.
His lordship made a satisfactory explanation, but acquiesced, on
the part of government, in the appointment of a committee of en-
quiry. 1 The committee reported merely the minutes of evidence
they had taken, which sufficed to acquit the government of any blame
in the transaction^ and no further discussion or proceedings took
place in the matter.

On August 13, 1867, Mr. Reardon moved an address to the
Queen, that she would be pleased to extend her most gracious pardon
to all persons now in prison in the United Kingdom and the colonies
for political offences. After a few words from Mr. Secretary Hardy,
the motion was negatived without a division. 15

On July 19, 1870, a member moved in the House of Commons



h Hans. D. v. 176, p. 489. Courtenay, see Knight Hist, of Eng.

1 Mir. Parl. 1838, pp. 4562, 6117, v. *, pp. 412-417.

&c. " Hans. D. v. 189, p. 1516. Ib.

3 Com. Pap. 1837-8, v. 23, p. 353. v. 222, p. 1759.
For career of Thorn alia* Sir Wm.



IN PARDONING OFFENDERS. 569

that an address should be presented to her Majesty that she would Prece-
be pleased to grant a free pardon to Richard Fennelly, who had dents.
been convicted of bribery at an election, and had been refused a
certificate of indemnity by the election commissioners. After a
defence of the sentence by the attorney-general and home secretary,
the motion was negatived on a division.

On August 1, 1876, and on July 20, 1877, Mr. O'Connor Power
moved resolutions in favour of pardoning certain persons who are
and have been for many years undergoing punishment for offences
arising out of insurrectionary movements in Ireland ; but after
debate the motions were negatived. The form of this motion being
for a resolution, and not for an address to the crown, was objected
to by leading members as unconstitutional. Nevertheless, the ob-
jection was not pressed, and the motion was negatived on its
merits. 1

In January 1882, the home secretary (Sir W. Harcourt), in jj ev ]y lr
reply to a petition from Oxford University for the release of the Green.
Rev. Mr. Green, stated that he had been advised by the law officers
of the crown ' that the powers of the crown to discharge persons
from custody would not be rightfully, or even constitutionally, exer-
cised in the case of a person imprisoned for contempt of court,
committed by persistent disobedience to the lawful command of a
competent tribunal.'

1 Hans. D. v. 235, pp. 1603-1626.



570



THE ROYAL PREROGATIVE



Preroga-
tive in ad-
minister-
ing justice
and pre-
serving
the public
peace.



Co-opera-
tion of
Parlia-
ment
therein.



CHAPTER XII.

ROYAL PREROGATIVE IN MATTERS OP JUSTICE.

THE next prerogative which claims our attention is that
which appertains to the king as the fountain of justice,*
and general conservator of the peace of the realm.

So far as the maintenance of the public peace is
concerned, the appointment and jurisdiction of officers
to preserve the same are principally regulated by sta-
tutes, which are administered under the general super-
vision and responsibility of the home secretary. 11

'By the fountain of justice, the law does not mean
the author or original, but only the distributor. Justice
is not derived from the king, as from his free gift, but
he is the steward of the public, to dispense it to whom
it is due. He is not the spring, but the reservoir, from
whence right and equity are conducted by a thousand
channels to every individual.' Though justice flows
from the king as its fountain, he cannot administer it
personally, or authorise any deviation from the laws. c
It is an undoubted prerogative of the crown to erect
courts of judicature ; nevertheless, the crown alone
cannot erect a court, or enable it to proceed, otherwise
than according to the common law. Thus the co-
operation of Parliament is indispensable to enable the
crown to erect a court of civil law, a court of equity, or
a new court with a new jurisdiction/ 1 Moreover, the

" Palgrave, Eng. Const, v. ] , p. p. 21 5. Ante, p. 271 .

282. d Bowyer, Const, Law, pp. 170,

b Cox, Inst. p. f>92. See posf.,\.2. 171, 496. Forsyth, Const. Law, p.

c Petersdorfl, New Abrdmt. v. 6, 180.



IN THE ADMINISTRATION OF JUSTICE. 571

expense attending the administration of justice must
necessarily be defrayed out of moneys which have been
voted by Parliament. When any new courts of justice
are required, it is usual to establish them by statute, so
that Parliament, having concurred with the crown as
to the necessity for the same, is morally bound to
appropriate the needful supplies for their establishment
and support. 6

The great function of Parliament has been declared
to be ' the maintenance of the law and the redress of
grievances.' f Thus it is ' one of their principal duties
and functions to be observant of the courts of justice,
and to td'ke due care that none of them, from the
lowest to the highest, shall pursue new courses un-
known to the laws and constitution of this kingdom, or
to equity, sound legal policy, or substantial justice.' g
By the theory of our constitution, those to whom the
administration of justice is entrusted are not respon-
sible to Parliament, except for actual misconduct in
office. Otherwise, they occupy a position of complete
-independence ; and necessarily so, for they are bound
to administer the law without fear or favour, and it
may become their duty to pronounce judgments, and to
take proceedings, of which the House of Commons
itself may disapprove. 11 The express power which is
given to the two Houses of Parliament by the Acts
12 & 13 Will. III. c. 2, and 1 Geo. III. c. 23, to address proceed-
the crown for the removal of judges from office, who ^"ILst
are otherwise declared to be irremovable, is indicative judges,
of the duty that devolves upon Parliament to watch the
course of the administration of justice. 1 And Parlia-



e Hans. D.v. 161, pp. 510-512; and p. 517. Stubbs, Const. Hist. v. 2,

see Smith's Parl. Rememb. 1861, p. 605.

p. 18. h Mr. Childers' evid. before Legal

f 4 Inst. 9, 11. Hot. Parl. 1 Hen. Depts. Comm., Com. Pap. 1875, v.

IV. 36. 30, p. 659.

g Rpt. on Lords' Proceed, on Mr. ' Smith's Parl. Reuiemb. 1860,

Hastings' Trial. Com. Jour. v. 49, p. 232.



672



THE KOYAL PREROGATIVE



ment ' has not only the right to address the crown for
the removal of a particular judge, but, in cases of mis-
conduct, it has the right of exercising a superintending
control over the manner in which they discharge their
duties, and to institute enquiries relative thereto.' 3
* The judges of the land act under responsibility ; and
any misconduct of which they may be guilty may be
enquired into, and animadverted upon, by either House
of Parliament.' Such enquiries ordinarily begin, by
questions addressed in either House to members of the
administration, for information in regard to the matter
of complaint.*

But in the discharge of these high inquisitorial
functions, Parliament has prescribed for itself certain
tion rp S1 " cons titutional rules and limitations, to prevent undue
encroachment upon the independence of the judicial
office, which is in itself one of the main bulwarks of
English liberty. And it devolves upon the advisers of
the crown, as those who are peculiarly responsible for
preserving the purity of justice inviolate, to be fore-
most in vindicating the independence of the judges by
whomsoever it may be assailed, and in guarding against
the intrusion of party influences in any proceedings of
Parliament in matters affecting the administration of
the law. 1



Limits of



J Hans. D. v. 67, p. 1006. See
discussions in Parliament in regard
to the fitness of Cli. Just. Lefroy to
continue to preside over Court of
Q. B. in Ireland, when over ninety
years of age. (Ib. v. 182, p. 1629 ;
v. 183, pp. 853, 778.) His lordship
resigned his seat on the bench very
Boon afterwards, when the Derby
administration took office. (Tb. v.
184, p. 835.)

k Ld. Chan. Campbell, Hans. D,
v. 163, p. 824. Amos, Fifty Years
Eng. Const, p. 443. See discussions
in II. of C. on certain expressions
used in public by Irish judges. (Mir.
Parl. 1833, pp. 3925-3927, and Hans.
D. v. 178, p. 190. Ib. v. 227, p.



1871.) Enquiry respecting the lan-
guage and demeanour of a Vice-Chan,
in open court. (Hans. D. v. 172, p.
871.) Enquiry respecting the undue
severity of certain sentences passed
by the Dy. Asst. Judge of the
Middlesex Sessions. (Ib. v. 175, p.
1061 .) Enquiry respecting the great
inequality of sentences frequently
passed at assizes on criminals. (Ib.
v. 198, pp. 1373, 1530). Debate upon
an alleged improper exercise of the
power of judges to punish for con-
tempt of court. (Ib. v. 224, p, 1743.
Ib. v. 226, p. 375.)

1 Hans. D. v. 215, p. 1297. L. T.
v. 63, p. 58. Post, v. 2.



IN THE ADMINISTRATION OF JUSTICE. 573

Upon this principle, it is inexpedient for ministers Cnmina-
to sanction the reception by Parliament of motions or charges
petitions complaining of the judges, unless under cir-
cumstances which would justify enquiry into the matter
of complaint, and where there is a bond fide intention of
proceeding thereon. And it is the invariable practice
of Parliament never to entertain criminative charges
against anyone, except upon the ground of some dis-
tinct and definite basis. The charges preferred should
be submitted to the consideration of the House in
writing, whether it be intended to proceed by impeach-
ment, by address for removal from office, or by com-
mittee, to enquire into the alleged misconduct, in order
to afford full and sufficient opportunity for the person
complained of to meet the accusations against him. n

It is also highly irregular to bring into discussion, in

^ > ' subjvdice.

either House ol Parliament, any matters, whether they
relate to civil or criminal cases, which are undergoing
judicial investigation, or are about to be submitted to
courts of law; as it leads to the imputation of a desire
to interfere with the ordinary course of justice. This
observation applies with additional force to the House
of Lords, which, being itself the highest court of judi-
cature, should carefully refrain from prematurely and
prejudicially discussing the merits of a case that has
been assigned, by law, to the consideration of another
tribunal. 1 * If, upon grounds of public policy, it should



m Disraeli, Hans. I), v. 223, p. 463. 523. Hans. D. v. 164, p. 566 ; v.

Atty.-Gen. Baggallay, Ib. v. 225, 165, p. 135; v. 166, p. W'j. Case

p. 90. Post, v. 2. of the seizure of the Alexandria, Ib.

n Case of the Bishop of Bath and v. 170, p. 709 ; Ib. v. 208, p. 433 ; v.

Wells, 1852. Hans. D. v. 122, pp. 213, p. 852. Parliament cannot con-

465, 613, 948-953. Case of Ch. Just, etitutionally entertain matters which

Monahan. Hans. D. v. 163, pp. come within the province of a jury

823, 898, 984 ; and again, Ib. v. 178, to determine. Fost. and Fin. N. P.

p. 196. See Mr. Wynn's observa- C. v. 3. p. 560, n. Hans. D. v. 208

tions in Parl. D. N.S. v. 13, p. 1249. pp. 1786, 1869.
Rpt. Sel. Comm e . on Corrupt Prac- p Mir. of Parl. 1831, p. 623

tices. Com. Pap. 1870, v. 6, p. 17. 1831 2, p. 1161.

Mirl. of Parl. 1831, pp. 239,



574



Conduct
of judges
not to be
lightly
impugned.



Interfer-
ence with
prosecu-
tions.



be expedient to institute a debate on a question of this
kind ; the House should nevertheless refrain from ask-
ing for papers to be laid before them, in -any case that
is waiting for trial or undergoing judicial investigation^

Furthermore, it is not customary to communicate to
Parliament the evidence adduced in trials before the
ordinary legal tribunals, unless some special reasons
should justify the calling in question of any portion of
their proceedings. 1

Complaints to Parliament in respect to the conduct
of the judiciary, or the decisions of courts of justice,
should not be lightly entertained. * If there is a failure
in the administration of justice, from whatever cause,
affecting any judge, both Houses of Parliament may
address the crown, to remove that judge from office.' 8
But 'nothing could be more injurious to the administra-
tion of justice than that the House of Commons should
take upon itself the duties of a court of review of the
proceedings of an ordinary court of law ; ' or of the
decisions of a competent legal tribunal, or, that it
should ' tamper with the question whether the judges
are on this or that particular assailable,' and endeavour
' to inflict upon them a minor punishment Jt by subjecting
their official conduct to hostile criticism. Parliament
should abstain from all interference with the judiciary,
except in cases ' of such gross perversion of the law, either
by intention, corruption, or incapacity, as make it neces-
sary for the House to exercise the power vested in it of
advising the crown for the removal of the judge.' 11 The
proper proceedings in such a case are explained in a



i Case of the so-called ' Con-
federate Rams.' Hans. D. v. 173,
p. 9G5.

r Earl Derby. Hans. D. v. 187,
p. 308. Case of Fulford and Well-
stead. 2b. v. 188, p. 1147; Ib. v.
208, p. 420.

Sir G. Grey, Ib. v. 183, p. 793.

* -Mr. Gladstone, Hans. D. v. 209,



p. 757 ; Ib. v. 224, p. 585 ; v. 220,
p. 501 ; v. 228, p. 905 ; v. 234, p.
1558.

11 Ld. Palmerston, Hans. D. v.
140, p. 1501 ; Sir R. Peel's speeches
in the case of Baron Smith, Mir. of
Parl. 1834, pp. 13'?, 312; and debate
on Dr. Kenealy's motion in regard to
trial of Queen v. Castro.



IN TUB ADMINISTRATION OF JUSTICE. 675

chapter of the second volume of this treatise. In like
manner the government should not be called upon to
make a representation to the lord chancellor in respect
to decisions or conduct of magistrates, unless they are
satisfied that a case has been made out to justify such a
proceeding/

By the Act 26 Viet. c. 29, 9, considered in Corrupt
connection with the Act 31 & 32 Viet. c. 125, 16, practices
it is understood that the duty of considering a
report from the judge who has tried a controverted
election, or from a royal commission, wherein certain
persons are charged with bribery, treating, or other
corrupt practices, is assigned to the attorney- general,
who is empowered, at his discretion and on his own
responsibility, to institute the necessary proceedings
against the offending parties. w In proceedings in cases
of bribery and other misconduct arising out of parlia-
mentary elections, it had been usual heretofore for the
House of Commons to take the initiative, and to order ,
the attorney-general to prosecute offenders ; x but since
the passing of the Acts the initiative has been left to the
attorney- general. 7 When that officer is about to insti-
tute a prosecution against individuals for offences against and other
the purity of election, under the statute, the House is at
liberty to interpose with an address to the crown, praying
that such a prosecution may be relinquished. 2 But under
other circumstances, as where there is ground for believ-
ing whether from public notoriety or from investiga-
tions of parliamentary committees that indictable
offences have been committed, the initiative in criminal



T Hans. D. v. 216, p. 1497, and Mir. of Par!. 1841, pp. 2277-2282;

see post, v. 2. Hans. D. v. 63, pp. 819-843 ; v. 126,

w See Hans. D. v. 171, p. 1048 ; p. 1051. Com. Jour. v. 86, p. 779.
Ib. v. 183, p. 1460 ; v. 193, p. 1746 ; Attv.-Gen., Hans. D. v. 212, pp.

v. 214, p. 1041. 1628, 1635, 1810. But in regard to

1 See the principles which governed motions for an address for the issue of

the House in ordering such prosecu- commissions of enquiry, see post, v. 2.
tions, as explained by Mr. AVynn, in z Hans. D. v. 158, pp. 1752-1756.



57G



THE ROYAL PREROGATIVE



proceedings should be left to the executive government.
And the House should not interfere with their discretion,
except in very extreme cases. a This rule applies with
equal force to all cases wherein the attorney-general is
called upon to exercise quasi- judicial functions. 15 For the
House has no right ' to constitute itself into a court of
appeal from any description of judicial authority,' or to
interfere, by resolution, with the course of judicial pro-
ceedings ; even in matters arising out of parliamentary
elections. Otherwise, it would be impossible to avoid
the suspicion that the administration of justice had
been encroached upon for political purposes,
informa. Parliament, however, has a right to demand full

laid before information upon all matters affecting the administration



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