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of justice, including the appointment of magistrates
and other judicial officers ; and papers on this subject,
when moved for, are usually granted as a matter of
course : unless the application should involve an irre-
gular and unconstitutional interference with the ordinary
course of law, or is for information which it would be
prejudicial to the public service to supply." 1

But it is not the practice of either House of Parlia-
ment, as a general rule, to ask for copies of legal
opinions given by the law officers of the crown to the
executive government (or furnished to a public cor-
poration 6 ), or cases submitted to the law officers for
their opinion/ nor is it customary for government to
communicate them to Parliament should they be applied



ment.



Confiden-
tial com-
munica-
tions.



See May, Parl. Prac. ed. 1883,
p. 728. Case of Directors, &c., of
the West Hartlepool Harbour and
Railway Co., Hans. D. v. 171, pp.
1294-1302; and see debates as to
the mode of conducting the prosecu-
tion in the case of Regina v. Overend,
Ourney & Co., Ib. v. 197, pp. 821,
975, 1194.

" Hans. D. v. 221, p. 1404.



e Ib. v. 158, p. 1752; v. 159, pp.
145, 201 ; v. 234, p. 584.

d Mir. of Parl. 1837, p. 2182.
Hans. D. v. 1G5, pp. 372, 543 ; Ib.
v. 232, p. 1358; v. 234, p. 1440.

Hans. D. v. 102, p. 1169.

f Rep. Com. Thames Embankment,
Corns. Pap. 1871, v. 12, p. 415.
Hans. D. v. 233, p. 1305.



IN THE ADMINISTRATION OF JUSTICE. 577

for. g A similar doctrine was laid down in Lower Canada, Legal
as appears by the reply of his Excellency Governor P inion3 *
Gosford to an address of the House of Assembly, on
December 11, 1835, for copies of legal opinions, wherein
he states that such communications were ' confidential,'
and, ' except in peculiar cases, should be held sacred.'
They are considered as confidential. 11

But it is not even usual for a minister to state to the House the
substance of an opinion given by the crown law officers ; though
this may be done at the discretion of the government. 1 But on
May 9, 1867, Earl Derby (the premier) read to the House of Lords
the opinion given by the then law officers of the crown, in 1856,
and the opinion given by the law officers of the crown under his
own administration, in 1866, for the guidance of the government
in regard to the legal right of prohibiting the holding of public
meetings, or of preventing the gathering together of large assem-
blies of people (not behaving in a disorderly manner) in the metro-
politan parks. He read these opinions to justify the proceedings
of government in attempting to prevent the holding of political
meetings in Hyde Park. Earl Russell declared this to be ' a most
unusual course, and one which may be productive of injury at a
future time.'J

On August 28, 1866, Sir C. Darling, ex-governor of Victoria,
applied to the colonial secretary for copies of opinions of the crown
law officers, in reference to the alleged illegality of some of his pro-
ceedings as governor of that colony, with a view to his own defence
and justification. In reply, he was informed that consistently with
the practice of the public service he could not be furnished with
' copies of the opinions given to the secretary of state by the
crown lawyers in their capacity of the confidential advisers of the
government.' k

The like rule applies with respect to communications
between law officers of the crown concerning particular



Mir. Parl. 1830, pp. 387, 1877 1831, p, 2111; Hans. D. v. 184,

-1879; 1840, p. 2120. Hans. D. p. 49.

v. 74, p. 568; Ib. v. 161, p. 542; ' Hans. D. v. 172, pp. 250, 434;

Ib. v. 169, pp. 1328-1393; Ib. v. 2b. v. 194, pp. 621, 828, 831.

208, p. 1649; v. 218, p. 493. J Hans. D. v. 187, pp. 220, 228;

h Hans. D. v. 201, p. 1853; v. also see p. 235.

231, p. 257. Under peculiar circum- k Corresp. rel. to recall of the late

stances opinions have been presented Gov. of Victoria. Com. Pap. 1807,

to Parliament, the law officer him- v. 49, p. 609.
self acquiescing therein. Mir. Parl.

VOL. I. P P



578 THE ROYAL PREROGATIVE

trials ; or the judge's notes taken at a trial ;* or
coroner's notes, which, as they partake of a judicial
character, can only be produced with the consent of
the officer hiniself. m Opinions given by judges to the
government on a Bill pending in Parliament ought not
to be produced for the purpose of influencing the House
in its legislative capacity, or to form the groundwork
of legislative enactment n

By ancient usage, the sovereign, as well as the House
of Lords, whether acting in their judicial or in their
legislative capacity, have a right to require the opinions
of the judges of England upon abstract questions of
law, upon which correct advice is deemed to be
necessary.

The duty of Parliament in reference to abuses which
may occur in the administration of justice, will receive
Prece- further illustration from the following precedents.

dents.

On July 17, 1828, Mr. Hume presented to the House of Com-

Preroga- mons a petition complaining of abuses in the Prerogative Court, and
' especially of the misconduct and malversation in office of the pre-
siding judge. He went into a detailed account of the alleged abuses,
and concluded by remarking that it was doubtful whether the
government should not themselves institute an enquiry therein, in
preference to an investigation by a committee of the House, During
the debate which ensued, it was shown that the charges in the
petition were destitute of foundation, whereupon the motion that
the petition do lie on the table was negatived.? On the following
day, upon motion of Mr. Hume, a return of the amount of fees
allowed and received in this court, during certain periods, was
ordered, with a view to determine the existence of certain of the
abuses attributed to the officers of the court.i

Police On June 27, 1833, a petition was presented to the House of

Commons from the inhabitants of two villages near London, com-



1 Mir. Parl. 1830, pp. 527, 1667- dents in the opinion of the Supreme

1688. In another case, however, Court judges of Massachusetts, given

copies of 'judge's notes' were or- to the Legislature on money bills in

dered, Ib. 1834, p. 1243. But see 1878 (Pub. Docts. 1879) ;' and for

Hans. D. v. 171, p. 809; v. 186, p. later precedents, see Denison and

904 ; v. 206, p. 1980. Scott, Lords' Practice on Appeals,

- Mir. Parl. 1841, p. 2207. pp. 19-26.

" Ib. 1833, p. 2569. P Ib. 1828, pp. 2584-2697.

See historical notes and prece- * Ib. p. 2623.



IN THE ADMINISTRATION OF JUSTICE. 579

plaining of the employment of the metropolitan police force as spies, Prece-
and asking protection against the evils resulting from such a prac- dents,
tice. The petition was referred to a select committee, which on
August 6 reported to the House three resolutions, declaring that
the conduct of a certain policeman named Popay had been deserv-
ing of ' most grave and decided censure ; ' also, ' solemnly deprecating
any approach to the employment of spies, in the ordinary accepta-
tion of the term, as a practice most abhorrent to the feelings of the
people, and most alien to the spirit of the constitution.' Whereupon
Popay, who had been heard, by counsel, before the select committee
in his own defence, was dismissed from the service. 1 "

On June 12, 1868, a motion was made in the House of Commons
for the appointment of a select committee to enquire into the causes
of the dismissal of Police-Sergeant Stone from the force ; but after
debate, wherein this dismissal was explained and justified, the motion
was withdrawn. 8

On February 13, 1834, Mr. Daniel O'Connell brought before the Baron
House of Commons a complaint against Sir William Smith, one of Smith,
the barons of the Court of Exchequer in Ireland, for ' neglect of
duty as a judge, and for the introduction of political topics in his
charges to grand juries.' In proof of these accusations, he quoted
from various returns on the table of the House, and from certain
of the judge's charges ; and concluded by moving that a select
committee be appointed to enquire into the conduct of Mr. Baron
Smith in respect to these accusations, which was agreed to.* On
February 21, however, it was represented to the House that a primd
facie case, sufficient to justify the removal of Baron Smith from the
bench, by a proceeding under the statute, had not been made out ;
and that Parliament had no constitutional right to institute an
enquiry into the conduct of a judge with any other view than that
of addressing the crown, under the provisions of the statute for his
removal ; else ' would the independence of the judicial bench be a
mockery, and the Act of 1 Geo. III. no better than waste paper.' u
It was accordingly moved, that the order for the appointment of the
committee be discharged ; which, after a long debate, was concurred
in by the House.

On March 23, 1841, Lord Mahon submitted to the House of Hulk
Commons a resolution, ' That in the opinion of this House the large system.
increase in the number of convicts to be permanently confined in
the hulks of Great Britain, although sentenced to transportation, in



' Com. Jour. 1833, pp. 537, 641. v. 232, p. 826; v. 234, p. 1846.

Com. Pap. 1833, v. 13, p. 401. May, * Mir. Parl. 1834, p. 123.

Const, Hist, v. 2, p. 292. Ib. p. 304 ; and see Ld. Chelras-

5 Hans. D. v. 192, pp. 1478-1483. ford's observations in Hans. D. v.

And see case of Const. Maloney, Ib. 182, p. 1636.

P p 2



680 THE ROYAL PREROGATIVE

Prece- pursuance of the minute of the secretary of state for the Home
dents. Department, dated January 2, 1839 [which declared, that convicts
sentenced to seven years' transporation shall be, as far as practic-
able, employed in the hulks and dockyards at home and at Ber-
muda], is highly inexpedient.' This resolution was chiefly intended
to restrain an ' undue entension of the prerogative of the crown,'
which nevertheless was exercised in accordance with the letter of
the law. The secretary of state was by law empowered, at his dis-
cretion, to retain in confinement at home any persons who might be
sentenced to transportation. But this authority had been con-
fessedly granted for the purpose of enabling the secretary to ' dis-
tinguish between particular cases ; that in cases of early youth, of
extreme old age, or any other special circumstances, he might inflict
imprisonment at home upon those to whose offences the law had
affixed the punishment of transportation.^ Moreover, the hulk
system, as a mode of secondary punishment, had proved injurious
to the criminal, and had been expressly condemned by a committee
of the House of Lords in 1835. With a view to prevent an undue
extension of the hulk system, Lord Mahon asked the House to
adopt the above resolution. In reply, Lord John Russell (colonial
secretary) admitted that the hulk system was objectionable, but did
not think it advisable that the House should come to any resolution
on the subject ; he therefore moved the previous question. After a
debate, Lord Mahon determined to press his motion, when it was
carried, against the government, by a majority of twenty-one.* A
month afterwards. Lord John Russell intimated that it was the
intention of government to continue, to a limited extent, the trans-
portation of criminals ; and to establish penitentiaries for criminals
retained in this country, instead of sending them to the hulks.* It
was subsequently stated, in the House of Lords, that the hulk system
had been abandoned, in consequence of the foregoing resolution.?
Baron On May 11, 1843, Mr. Buncombe presented to the House of

Gurney. Commons a petition from W. Jones, a prisoner in the Leicester
county gaol, complaining of the conduct of Baron Gurney, during
his trial before that judge, on a charge of sedition, whereby Jones
alleged that he had been deprived of an opportunity of vindicating
his innocence to the jury. In such a case the law afforded no



T Mir. Parl. 1841, p. 909. epect of all but military convicts,

w ^b. p. 982. has been brought to an end. Fras.

Ib. 1841, p. 1280. Mag. v. 79, p. 001 ; Hans. D. v. 194,

y Hans. D. v. 109, p. 859; and see p. 333. 'Penal servitude,' either at

a debate in the II. of C. on March 9, home or abroad, has been substituted

1863, on Transportation and Penal by law for transportation. Stephen,

{Servitude. By the closing, in 1807, Hist. Grim. Law, ed. 1883, v. 1, p.

of Western Australia against any 482.
more convicts, transportation, in re-



IN THE ADMINISTRATION OF JUSTICE. 681

remedy, and an application to the crown for a remission of the Prece-
ssntence had been unsuccessful. Wherefore Mr. Duncombe moved dents,
that an address be presented to her Majesty, to be pleased to take
this case into her merciful consideration. In reply, the home
secretary (Sir James Graham) showed that there was no sufficient
ground for impugning the conduct of the judge, and that it was
inexpedient for the House to advise the crown in regard to the
exercise of its prerogative of mercy, ' unless circumstances strongly
warranted the adoption of such a course.' After some further
debate, the motion was withdrawn. 1

On February 28, 1856, a motion was made in the House of Irish
Commons for a copy of a judgment recently delivered in an Irish J ud g e -
court of law, and papers showing further proceedings consequent
thereupon. The mover alleged that the judge had manifested in-
capacity at this trial, which had led to grievous consequences to the
parties interested therein. In reply, Lord Palmerston denied that
there had been any abuse in the administration of the law in this
case, which could justify interference on the part of Parliament.
He stated that the judgment complained of had been confirmed by
a superior court, and ' was at this moment the subject of a judicial
proceeding pending in the highest court of appeal.' The question
was negatived, without a division.*

The point involved in the preceding case had already been de- The
cided by the House of Commons in the case of the Deacles, in 1831. eac *e s -
These parties had a grievance against a magistrate, which had been
submitted to the examination of a court of law. The decision of
the court was adverse to the Deacles ; whereupon they petitioned
the House of Commons for the appointment of a committee to in-
vestigate their complaint. Although both parties were desirous of
a parliamentary enquiry, the House refused to grant the committee,
on the ground that it was not according to usage to enquire into
a matter which had already undergone judicial examination, and
could be submitted, on appeal, to a higher court. b

On May 6, 1844, a motion was made in the House of Lords to Irish
condemn the appointment of a certain person to the office of stipen- magis-
diary magistrate in Ireland, on account of his having published trates -
intemperate and extreme opinions upon public political questions.
This motion was regarded as a censure upon the lord lieutenant,
for having made this appointment, and upon the imperial government
for having acquiesced therein. But the charge of unfitness for office



1 Hans. D. v. 69, pp. 189-206. motion on March 15, 1832, for a

a Ib. Case of Talbot v. Talbot. committee to enquire into the loss of

Hans. D. v. 140, pp. 1551-1561. life at the Manchester riots, in 1819;

b JMir. Parl. 1831, pp. 2213, 2344, which, for a similar reason, was op-

2463 ; see also debate on Mr. Hunt's posed by government, and negatived.



582



THE ROYAL PREROGATIVE



Prece-
dents.



Mr.

O'Dris-

coll.



Irish

magis-
trates.



not having been substantiated, the motion was negatived without a
division.

On July 16, 1844, a motion was made, in the House of Lords, for
copies of memorials addressed to the Irish government, recommending
the restoration of Mr. Alexander O'Driscoll to the commission of the
peace, who had been dismissed therefrom on account of violent and
unbecoming conduct, and yet, within six months afterwards, had
been reinstated. At first, the government opposed this motion,
defending the right of the Irish lord chancellor to act as he had
done in this case ; but on hearing the facts elicited in debate, in
proof of Mr. O'Driscoll's unfitiiess for office, acquiesced in the motion
for papers. No further proceedings, however, took place in the
House of Lords, in reference to this appointment ; but on July 23, a
motion was made in the House of Commons, for an address to her
Majesty, praying for the removal of Mr. O'Driscoll from the Com-
mission of the Peace. In reply, the government admitted that this
subject ' was a very proper one for the House to consider ; ' and that
' there might be circumstances in which it would be the duty of the
House to address her Majesty to remove a magistrate from the Com-
mission of the Peace,' but the Irish secretary said, ' he thought that
when a member called upon the House thus to interfere with the
prerogative of the crown, exercised by its highest law officer, he
ought to be prepared to show that the power had been exercised
either corruptly or mischievously.' After some further debate, the
motion was negatived. Having soon afterwards again misconducted
himself, further enquiry was instituted by the Lord Chancellor of
Ireland into Mr. O'Driscoll's conduct, which led to his final dismissal
from the magistracy. 3

In 1861, a case occurred in reference to an Irish magistrate,
which gave rise to much discussion out of the walls of Parliament,
and which strikingly exemplifies the limits of parliamentary inter-
ference in matters affecting legal rights. Mr. Adair, an Irish land-
lord, and a magistrate for the county of Donegal, evicted a number
of tenants from his estate, in punishment for the murder of his
steward, being unable to discover the perpetrator of the deed. The
attention of the Irish government having been directed to this high-



Hans. D. v. 76, pp. 1319-1329.

* Ib. v. 80, pp. 827, 857, 1106.
See also discussion in H. of C. Feb.
25, 1845, on -motion for papers
respecting dismissal of Ld. Lucan
from the Commission of the Peace,
and his subsequent restoration there-
to, and appointment to lord-lieu-
tenancy of county of Mayo. The
government defended the conduct of



the Irish authorities, but agreed to
the production of the papers, that the
facts might be fully known. See
correspondence relative to dismissal
of Mr. Havens from Commission of
the Peace, Com. Pap. 1862, v. 44, p.
347. Also case of Mr. Madden,
Hans. D. v. 200, p. 908. Also case
of three Irish magistrates, Ib. v. 236,
p. 409.



IN TUE ADMINISTRATION OP JUSTICE. 688

handed proceeding, a correspondence ensued with Mr. Adair, in Prece-
which he defended the course he had pursued, in the interests of life dents>
and property, denying that he had done anything that could not be
justified. The government remonstrated with him for what he had
done, but admitted that he had not transgressed the limits of the
law, or exceeded his rights as a landlord. The case excited a strong
feeling of indignation throughout Ireland, and great sympathy for
the suffering tenantry. During the progress of these events, the
attention of the House of Commons was called to the subject, on two
occasions, by enquiries of the ministry as to whether they were cog-
nizant of what had occurred, and whether they intended to recom-
mend the removal of Mr. Adair from the Commission of the Peace.
To this the government replied, that while they had not hesitated to
express to Mr. Adair their disapproval of his conduct, they did not
feel justified in removing him from the magistracy, as he had not
exceeded his legal rights. 6 Not satisfied with this explanation, a
motion was made on June 24, in the House of Commons, for an
address to the Queen, for an enquiry into the conduct of Mr. Adair,
in reference to these transactions, ' with a view to consider whether
it is fitting he should continue to hold her Majesty's commission.'
The government opposed the motion (waiving the 'technical plea
that it was beyond the province of the House ') on the ground that
nothing had occurred which would justify the exercise of the prero-
gative in the dismissal of Mr. Adair from the magistracy ; and the
question was negatived/ A few days afterwards another member
moved to resolve ' that it is expedient that a full and efficient enquiry
should be instituted into all the circumstances attending these trans-
actions.' Lord Palmerston, however, while admitting that it was
right to discuss the matter, in order to elicit the opinions of the
House upon the case, resisted the motion, as being an attempt to
induce the House to exercise its powers in a manner not justified by
constitutional principles. He asserted that ' it would be a most
dangerous and outrageous abuse of the power of the House if it
interfered with the private transactions of any individuals, within
the limits of their legal rights. If they have done anything beyond
the limits of the law ; if, from any motives whatever, they may have
exceeded their power, the law itself will correct the evil. But it is
not necessary for this House to interfere unless the government has
had a duty to perform, and has neglected to perform it.'e Or
division, the motion was negatived by a large majority. Undeterred
by this defeat, the general question was soon afterwards revived, in
a different shape. On July 5, it was moved that a committee be
appointed to enquire into the causes and circumstances of certain

e Hans. D. v 162, pp. 523, 845. * Ib. v. 163, p 1513.

Ib. v. 164, pp. 243-252.



584



THE ROYAL PREROGATIVE



Prece-
dents,



Jurors.



Treat-
ment of
prisoners.



Captain
Cooto.



evictions which had lately taken place in another part of Ireland.
These evictions, unlike those at Derryveagh, had not resulted from a
suspicion of Ribbonism, but were apparently owing to religious dis-
sensions; it being alleged, on the one hand, that they had all occurred
because the tenants refused to send their children to the Protestant
schools, while by others this statement was denied upon oath. The
chief secretary for Ireland opposed the motion, on general principles,
without entering into particulars concerning it. He remarked that
every argument that had been urged against the interference of the
House in the Derryveagh case, was still more applicable to the pre-
sent. ' Such an enquiry would be wholly without profit ; it would
not tend to elevate the character of the House ; but it would make
the House for the first time usurp the functions of the tribunals in
a way that had undoubtedly never been done before. The powers of
this House are without limit ; but they are limited by our own sense
of discretion, and guided by the precedents of former generations,
and I believe that no precedent can be produced of the House having
acted in a manner so contrary to its functions, and so inconsistent
with its prudence.' Whereupon, without further debate, the question
was negatived. 11

On June 20, 1862, a motion was made in the House of Commons
for the appointment of a committee to enquire into certain irregu-
larities concerning jurors at the last assizes at Tyrone. The govern-
ment admitted that the conduct of the high sheriffhad been blamable,
but did not think that a sufficient case had been made out to justify
the proposed enquiry. The question was accordingly negatived.

On April 9, 1869, a similar enquiry concerning a jury panel in
the county of Monaghan, which had been quashed on the ground that
it had been partially and improperly arranged by the sheriff 1 was
made in the House of Commons ; but on a satisfactory reply being
given by the Irish attorney-general, the matter was dropped. 1

On June 15, 1866, it was moved to resolve, that the treatment of
prisoners in the Limerick gaol, under the Habeas Corpus Suspension
(Ireland) Act, has been unnecessarily severe and unconstitutional ;
and that it is the duty of the government to prevent the continuance
of the same. After explanations offered by the chief secretary for
Ireland, which were deemed satisfactory by the House, the motion
was withdrawn. J

On March 14, 1870, it was moved in the House of Commons to
resolve, that, in the opinion of this House, the conduct of the govern-
ment in the dismissal of Captain Coote from the shrievalty of the
county of Monaghan, and the appointment of his successor, has been
unconstitutional, and calculated to impede the due performance of



h JIans. D. pp. 413-435. ' Ib. v. 195, p. 497.

Ib. v. 184, p. 494.



IN THE ADMINISTRATION OF JUSTICE. 585



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