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public duty. But after a long debate, the motion was negatived on Prece-
division.

On May 30, 1870, enquiry was made in the House of Commons
in regard to the continuance for nine months of a vacancy in the
office of Lord Justice of Appeal ; the delay in filling up which was
explained and justified by the attorney-general. 11

On March 8, 1872, a debate arose in the House of Commons on a
motion complaining of the appointment of a county-court judge in
Wales,who was unable to speak Welsh. The motion was withdrawn.
But on March 11, the House resolved that it was desirable that such Necessary'
judges should be able to speak and understand Welsh, whenever that qualifi-
language was generally spoken in their district. Subsequently, on
June 26, 1874, a member again called the attention of the House to
the practice of appointing to the office of county court judge per-
sons unacquainted with the Welsh language. The home secretary
undertook that this special qualification should be borne in mind, in
future appointments. 1

On April 10, 1877, the House of Commons resolved, notwith- Lord
standing the opposition, on technical grounds, of the chancellor of CocLrane.
the exchequer, to appoint a select committee to enquire and report
upon the petition of the grandson and legatee of the late Lord
Cochrane, afterwards Lord Dundonald, who in 1814 was dismissed
from the royal navy upon his being found guilty of complicity in a
fraud upon the Stock Exchange, for the purpose of raising money.
His innocence of this charge being afterwards admitted, he was in
1832 reinstated in the rank in the navy which he would have held
~had he not been dismissed from the service. In 1847, the Order of
the Bath was restored to him. The only reparation still due was
the refunding of his half- pay from 1814 to 1832, which injustice to
his memory, and to complete the gracious act of the sovereign in the
restoration of this old veteran to his rank and honours, was now-
sought for. m The committee reported on July 16, reviewing the
whole case, and declaring that it is deserving of her Majesty's most
gracious and favourable consideration. 11

In 1881, two men, named Clows and Johnson, recently liberated
on proof of unjust conviction, severally received 500. compensa-
tion.

In the administration of justice it is unavoidable but Erroneous
that erroneous convictions will sometimes occur, and * G ~
that circumstances afterwards brought to light will

k Hans. D. v. 201, p. 1597. m For the petition see Com. Pap.

1 Ib. v. 220, p. 524. Com. Pap. 1877, v. 68, p. 10.

1874, v. 54, p. 405. Hans. D. v. Ib. v. 10, p. 1.

222, p. 1394. The Colonies, Feb. 10, 1882, p. 4.



586 THE ROYAL PREROGATIVE

prove that an innocent person has been unfortunately
condemned. While the government are bound to afford
every facility to enable one who has thus unjustly suf-
fered to re-establish his innocence, the principle has
never been acknowledged that such persons are entitled
to claim pecuniary compensation, either from the go-
vernment or from Parliament. 5

In 1858, however, a case occurred of extraordinary hardship. In
the year 1843, Mr. W. H. Barber was convicted of forgery, and
transported to Norfolk Island, where, it appears, he was subjected
to peculiar indignities by the authorities. It was afterwards proved
that he was wholly innocent of the charges brought against him, and
he was released. He then petitioned the House of Commons, setting
forth his sufferings, and soliciting redress. On June 15, 1858, with
the consent of the crown, this petition was referred to a select com-
mittee, ' to consider and report whether any, and what steps should
be taken in reference thereto.' The committee unanimously agreed
that every allegation in the petition was true, and that Mr. Barber
had endured incredible hardships and persecutions, which entitled
him to the favourable consideration of the government. Whereupon
a sum of 5,OOOZ. was included in the estimates as a compensation to
this gentleman. Shortly afterwards, a change of ministry ensued ;
but the new administration retained this item in the estimates, in
deference to the judgment of their predecessors in office, and the
money was voted by Parliament. This amount, however, did not
satisfy Mr. Barber. He considered himself entitled to a further sum
of 3,7001., to indemnify him for his personal expenses in proving his
innocence before the courts of law, and in regaining his original posi-
tion. Accordingly, on June 11, 1861, the member who formerly
introduced the matter to the notice of the House of Commons sub-
mitted another motion, to declare that the strong claims of Mr.
Barber to the favourable consideration of the crown, referred to in
the aforesaid report of the committee in 1858, have not been satis-
fied ; and that the circumstances set forth in a recent petition from
himself to the House of Commons are entitled to the consideration
of the government. But the home secretary (Sir George Grey)
opposed the motion, on the ground that Parliament was not bound



v Case of J. Bell, Hans. D. v. 198, afterwards proved that he was inuo-

p. 1294. But see case of S. G. cent, and in respect of which he had

Merrett, Ib. v. 234, p. 1308. And received the royal pardon, was

in 1881, W. Galley, who forty years granted 1,000/. as compensation,

before had been convicted and trans- Lond. Guard. Sept. 21, 1881, p. 1315.
ported for murder, of which it was



IN THE ADMINISTRATION OF JUSTICE. 587

to award pecuniary compensation to persons who had been im-
properly convicted ; and that it was only the exceptional circum-
stances of Mr. Barber's case which had induced the government to
consent to the grant already made to him, and which was sufficient
to cover every reasonable demand he had against the public. The
question was accordingly negatived.^

On April 28, 1863, a petition was presented to the House of Erroneous
Commons by Mr. W. Bewicke, representing the loss and injury he ^^ Ctaon
had sustained in consequence of having been tried and convicted of Bewicke.
firing a loaded pistol at four sheriff's officers, with intent to kill or
do bodily harm, and sentenced to four years' imprisonment. His
accusers were afterwards found guilty of having conspired falsely to
charge Mr. Bewicke with the crime ; whereupon he received the
Queen's pardon. But meanwhile his property had become forfeited,
as that of a felon, and had been sold by auction. The net produce
of the sale was afterwards paid over to him, but Mr. Bewicke's loss
on the property had been very considerable, and he had also been
at great expense in prosecuting and bringing to justice his false
accusers. He therefore prayed the House to grant him relief and
compensation. On July 21, Mr. H. Berkeley moved, that in the
opinion of the House, the grievances suffered by Mr. Bewicke are
such as entitle him to the consideration of government. The home
secretary (Sir George Grey) opposed the motion. He admitted that
it was a case deserving of commiseration, but the law provided no
means of indemnity, and it would be an injurious precedent to vote
compensation from the public purse. On division, the motion was
negatived by a majority of two. r On April 29, 1864, Mr. Berkeley
moved for a committee to consider of an address to the Queen, pray-
ing her to direct adequate compensation to be made to Mr. Bewicke
for his sufferings and losses, and declaring that the House would
make good the same. The home secretary and attorney-general
resisted the motion, but expressed the willingness of government to
agree to the appointment of a select committee to enquire into the
special circumstances of the case, and as to whether Mr. Bewicke
sustained much loss by the sale of his property at auction. After a
division, in favour of the main motion, a committee of enquiry into
the allegations of the petition presented in 1863 was appointed. On
June 17, the committee reported their opinion that Mr. Bewicke was
not entitled to any compensation, having failed to prove that there
had been a miscarriage of justice in his case, through the default of
the persons charged with the administration of the law. They also
declared their inability to accede to the proposition, that persons



< Hans. D. v. 163, pp. 944-952. r Ib. v. 172, p. 1175; and see
Law Mag. N. S. v. 13, p. 213. Smith's Parl. Reni. 1863, p. 166.



688 KOYAL PREROGATIVE IN ADMINISTRATION OF JUSTICE.

who have been convicted in due course of law by evidence subse-
quently proved to be false are entitled to compensation out of the
public purse. But in view of the loss sustained by the sale of his
property, under forfeiture, they ventured to suggest, for the favour-
able consideration of the crown, whether the full value of such
property at the time of forfeiture should not be restored to Mr.
Bewicke, minus the net produce of the sale already paid over to
him, 3

Com. Pap. 1864, v. 6, p. 547.



IN GRANTING HONOURS AND REWARDS 689



CHAPTEE XIH.

ROYAL PREROGATIVE IN GRANTING HONOURS AND
REWARDS.

THE next branch of the royal prerogative to which our Peroga-
attention will be directed is that which regards the gating
sovereign as the fountain of honour. honours.

Presuming that none can judge so well of the merits
and services of the subjects of the realm as the crown
itself, by whom they are governed or employed, the
constitution has entrusted to the sovereign the sole
power of conferring dignities, honours, and titular dis-
tinctions upon his people ; in confidence that he will
make use of the same in behalf of none but those who
-deserve distinction or reward. a But this prerogative,
like every other function of royalty, is exercised upon
the advice of responsible ministers.

It is a constitutional principle of great importance
that all honours should be bestowed by the spontaneous
action of the crown, and not necessarily at the instiga-
tion of ministers ; such advice, however, may be tendered
by way of suggestion to the sovereign through the
prime minister. b No interference with this prerogative
by either House of Parliament should ordinarily take
place, for the obvious reason that, if it were under-
stood that the goodwill and recommendation of Parlia-

a Act 34 & 35 Viet. c. 53. Bow- 1835. Mr. Disraeli, Ib. v. 223, p.

yer, Const. Law, p. 174. Petersdorff, 975. Martin, Life of P. Consort, v.

New Abdt. v. 6, p. 535. 3, p. 478. Torrens, Life of Ld. Mel-

b Earl Grey, Hans. D. v. 102, p. bourne, v. 2, p. 169. Welln. Desp.

1813. Mr. Gladstone, Ib. v. 193, p. 3rd S. v. 7, pp. 180, 366.



590



THE ROYAL PREROGATIVE



Advice of
Parlia-
ment
thereon.



ment was the road to honorary distinction, there would
be an end to all true responsibility ; and the favour of
private members would be sought after instead of the
approbation of the crown.

On June 27, 1873, Earl Stanhope, in the House of Lords, moved
an address to the Queen, praying her consideration to the institution
of an order of merit to be conferred on persons of desert in science,
literature, and art. The motion was opposed by ministers, on
account of difficulties in giving practical effect to the idea, and
negatived, without a division.

Nevertheless, exceptional cases may arise, and have
arisen, to justify the Houses of Parliament in approach-
ing the sovereign with their advice and recommenda-
tions in regard to the exercise of this prerogative, and
on behalf of meritorious public servants, whose claim
to the favour of the crown had been either overlooked
or disregarded.

Foreign orders, decorations, or medals cannot be
accepted by British subjects without express licence
from the crown. Such leave is never granted unless
to reward active and distinguished service against an
enemy, or actual employment in the service of the
sovereign who confers the distinction, or attendance
upon a foreign sovereign to convey to him an order
from the British monarch. The rules governing the
practice in such cases were established by Lord Castle-
reagh in 1812, d and were revised in 1870 ; they are
strictly maintained, although they may not be legally
enforceable. 6

It is very undesirable that Parliament should inter-
fere with the discretion of the crown in this particular;
and if any representation were made by Parliament



c Clode, Mil. Fore. v. 2, p. 327. Consort, v. 3, p. 472. Ib. v. 5, pp.



Hans. D. v. 139, p. 1532.



392-3D4. Welln. Deep. 3rd S. v. 5,



d They will be found in Hertslet'a pp. 321, 406. Earl Derby, Hans. D.

Foreign Office List. v. 229, p. 1265. L. Times, Nov. 9,

Queen Victoria's letter to Em- 1878, p. 19.
peror Napoleon, in Martin, Life of P.



IN GRANTING HONOURS AND REWARDS. 691

thereon, it ought to be in general terms, so as to leave
to the crown as much liberty as possible in dealing with
the subject. At the same time opinions expressed by
any considerable number of members of Parliament
would go far to induce the proper minister to consider
whether the rules applicable thereto could not be modi-
fied with advantage.* No rules have been laid down as
to British subjects receiving titles from foreign sove-
reigns. It rests entirely with the crown whether the
acceptance of such a title should be sanctioned or not. g

Thus, on June 3, 1845, Mr. Hume moved an address to the Prece-
Queen, that she would be pleased to grant such a pension as she dents.
should think proper to the Right Hon. Sir Henry Pottinger, as a
reward for his eminent public services, especially in China. The
premier (Sir Robert Peel) deprecated the interference of the House
in this matter, and said it was a question ' whether the House
should make a precedent of a special grant, usurping the prerogative
of the crown to reward public servants.' Considering, however, the
peculiarly exceptional circumstances of the case, he stated that he
would not oppose the motion, but would take upon himself to advise
her Majesty to make a suitable provision for this distinguished man.
Whereupon the resolution was agreed to, nem. con.^

And, in 1857, the government having been tardy in recognising
Ihe value of the public services of Sir John M'Neil and Colonel
Tulloch, upon a commission of enquiry into the state of the army in
the Crimea, and having tendered to them an inadequate reward, the
House of Commons passed an address, ' praying that some especial
mark of approbation might be conferred upon them ' by the crown,
in consideration of their able services on that occasion. The
ministry yielded to the general wish of the House, did not oppose
the address, and advised a favourable reply to it. 1

On June 16, 1865, Mr. Hanbury Tracy called the attention of
the House to the dissatisfaction prevailing in military circles, in
regard to recent appointments to and promotions in the Order of the
Bath, upon a motion for a copy of any regulations altering the con-



f Mr. Gladstone, Hans. D. v. 208, them head-money, at the urgent

pp. 1491, 1650, 1771. lb. v. 214, p. appeal of the II. of C. Mir. Parl.

773. 1834, pp. 2258, 2858. And case of

* Earl Derby, Ib. v. 229, p. 1415. those engaged in the Chinese war,

h Hans. D. v. 80, pp. 1380, 1391, which was successfully resisted by

1394. See a^o case of officers, &c. the government. Hans. D. v. 82, p.

engaged in battle of Navarino ; where 681.

the government were induced to allow l Hans. D. v. 144, pp. 2246, 2396.



592 THE ROYAL PREROGATIVE

stitution of the order. After a short debate, and explanations
from the prime minister on the subject, the motion was withdrawn.J

ofiiouse -^y constitutional usage, it is customary, in the case

of com- of Speakers of the House of Commons, on their final
retirement from the chair, to address the crown to
confer upon them ' some signal mark of royal favour.'
This is responded to, on the part of the sovereign, by
their elevation to the peerage, and by a message to the
House of Commons recommending that pecuniary pro-
vision may be made for the support of the dignity. k
Peerages. The creation of peers 1 is a peculiar and incommuni-
cable privilege of the sovereign, over which Parliament
has no control ; saving that it must be exercised upon
the advice of responsible ministers. 111

In 1784, George III. declared to Mr. Pitt his positive intention
to reserve the first rank in the peerage for his royal family." This
probably gave rise to the impression that the sovereign alone could
create a dukedom, and that ministers never interfered therein ; an
impression which, it need scarcely be said, is both unconstitutional
and unfounded.

In December 1711, by a stretch of the prerogative,
twelve new peers were created at once, professedly
for the purpose of overruling, or rather inverting, the
majority in the Upper Chamber upon a great political
question. In 1832, a similar encroachment upon the
independence of the House of Lords was attempted,

J Hans. I). v.] 80, p. 400; and see/A, the case of civil peerages, it is the

p. 748, in regard to tlie claims of certain rule for the expenses to be borne by

troops in India to the Indian Mutiny the country. Hans. D. v. 210, p. 103.

medal. Ib. v. 189, p. 171 ; v. 193, For procedure in contested claims to

pp. 640, 667, 760. peerage, see a paper in Law Mag. v.

k Rt. hon. 0. M. Sutton, Mir. Parl. 8, 4th s. p. 173.

1831-2, pp. 3467, 3486, 3502. lit. m May, Const. Hist. v. 1, c. 5.

hon. C. S. Lefevre, Hans. D. v. 144, Mir. Parl. 1830, p. 1705. Hans. D.

pp. 2126, 2271, 2300. v. 188, p. 1127. Hearn, Govt. Eng.

1 The process of making a peer, pp. 415-436. Bagehot, Eng. Const.

and the fees payable upon patents of p. 288. In regard to the choice of

dignities, as well as upon official ap- candidates for this honour, see Welln.

, 11 MI i r J TV /I* *l o ft rtr*>



pointrnents, generally) will be found Desp. Civil S. v. 6, p. 563.

in Com. Pap. 1867, v. 39, p. 425. In n See ante, p. 282.

the case of peerages conferred for Stanhope, Queen Anne, p. 507.



See ante, p. ,282.
military or naval services, but not in



IN GRANTING HONOURS AND REWARDS. 593

for the purpose of carrying the Reform Bill ; but the
crisis was happily averted by the prudence of the
Opposition. 1 *

In 1856, the right of the crown to create peerages Life
for life was, after investigation and debate, denied by pe
the House of Lords. The question was raised in the
case of Mr. Parke, an eminent lawyer, upon whom a
life peerage, with the title of Baron Wensleydale, was
conferred, for the avowed purpose of strengthening the
appellate jurisdiction in the Upper House. It was not
contended that the sovereign was debarred from con-
ferring this description of honour upon any of her
subjects, but merely that, in conformity to the usage
and practice of the constitution, since it has been de-
fined and settled in its best days namely, from the
revolution of 1688 downwards neither the patent
creating a life peerage nor the writ of summons issued
in pursuance thereof entitled the grantee to sit and
vote in Parliament. q This point having been decided
by the House of Lords, after an examination of prece-
dents, Lord Wensleydale, who, in February 1856, had
been created a baron * for and during the term of his
natural life,' refrained from attempting to take a seat in
that House. But on July 25 following, the Govern-
ment, acquiescing in this decision, created him an here-
ditary peer.

By an Act passed in 1871 for the preservation of pisquaii-
the dignity and independence of Parliament, bankrupt
peers are disqualified from sitting or voting in the
House of Lords/

The usage of Parliament also permits of the adop- Votes of
tion, by either House, of resolutions of thanks to officers
of the army or navy and others, who have rendered ment -
military service, for meritorious conduct in their official

P See ante, p. 192. D. v. 140, pp. 263, 508, 591, 898,

> Rep. Corn*, of Privileges, agreed 1121, 1289.
to by H. of L. Feb. 25, 1856. Hana. ' 34 & 35 Viet. c. 50.

VOL. I. Q Q



694 THE ROYAL PREROGATIVE

votes of capacity. Votes of thanks ' should be proposed in both
Houses, and with such a concurrence of opinion that
there could be no doubt of their being unanimously
passed.' 8 Various rules have been prescribed by pre-
cedent in respect to votes of this description. In the
first place, it has been customary that all such motions
should emanate from a member of the administration,
acting on behalf of the crown, as the source and foun-
tain of honour.* This rule has not been without ex-
ception, though it is worthy of notice that motions for
votes of thanks which have proceeded from private
members have rarely been successful.

For example, on June 20, 1794, Mr. Secretary Dundas having
moved a vote of thanks to the officers and men engaged in the
expedition to Corsica, Mr. Sheridan proposed an amendment to
restrict the same to certain officers enumerated ; but his amendment
was rejected." Again, on March 3, 1797, Mr. Keene moved an
amendment to a proposed vote of thanks to Sir John Jervis, to sub-
stitute an address to the crown to confer some signal mark of royal
favour upon Sir John ; but he was compelled to withdraw it. On
August 10, 1803, however, Mr. Sheridan moved a vote of thanks to
the Volunteer and Yeomanry Corps, which was carried nem. conJ
On February 14, 1828, Mr. Hobhouse proposed a vote of thanks to
the officers engaged in the battle of Navarin ; but the previous
question being proposed thereon, he withdrew his motion.

It is contrary to the practice of Parliament to pro-
pose thanks to officers, by name, who are under the
rank of general or commodore, or who are not in chief
command in the action ; w but ' the several officers, non-
commissioned officers, and privates ' engaged, are often
thanked collectively/ After the suppression of the
Indian mutiny, thanks were voted, collectively, to the
gallant civilians, who had voluntarily performed mili-



Mr. Disraeli, Hans. D. v. 149, p. 11, 1806.
252. w Peel, in Mir. Parl. 1841, p. 222.

' Parl. Hist, v. 33, p. 8. Hang. G. Hardy, Hans. D. v. 218, p. 428.
D. v. 149, p. 255. Ib. v. 203, p. 725. * See general indices, Com. Jour.

u Com. Jour. v. 49, p. 742. Hans. D. v. 136, p. 324.

" See also the proceedings on July



IN GRANTING HONOURS AND REWARDS. 595

tary service on that occasion, with courage and self- Votes of
devotion. 7 Thanks were also voted, on December 15,
1854, to * General Canrobert and the French army,
for their gallant and successful co-operation with her
Majesty's land forces ' in the Crimean campaign ; and
Field-Marshal Lord Eaglan was desired to convey to
them the resolution. Votes of thanks should be founded
on official papers, announcing the completion of the
service for which the thanks are to be given. 2

It is usual to await the conclusion of operations
before voting thanks in Parliament ; and not to pro-
pose them after a brilliant exploit, which has left the
operations or the victory incomplete.* And they are
only voted for successes, and could not therefore be
given to General Williams for his gallant defence of
Kars, as that fortress was ultimately surrendered. 1 *

It has not been customary to give the thanks of
Parliament for victories, however brilliant, meritorious,
or complete, unless they took place against a power
with whom Great Britain was, at the time, in a state of
formal recognised war. Of late years, however, and
~ especially in the case of military operations in India,
this has not been insisted upon. d In proposing thanks
for successes in India, it has been the uniform practice
to confine the expression of the same to the military
operations and arrangements, keeping out of view the
question of the policy and origin of the war, for which
the government are alone responsible. 6

Votes of thanks are always confined to the survivors;
there is no precedent of resolutions of approval being
adopted in regard to the conduct of deceased officers, of
whatsoever rank or merit.* In 1854, however, a general
resolution of appreciation, sympathy, and condolence,

y Hans. D. v. 148, p. 827. d Hans. D. v. 72, pp, 542, 571.

* Ib. v. 192, p. 925. e Mir. Parl. 1840, p. 801. Hans.

Peel, Hans. D. v. 71, p. 553. D. v. 66, p. 206.

b Hans. D. v. 141, pp. 1847, 1878. < Peel, in Hans. D. v. 84, p. 421.
e Mir. Parl. 1828, p. 189.

Q Q 2



596 THE ROYAL PREROGATIVE

Votes of was adopted in reference to the heroes who fell in the

thanks. .-^ . .

Crimean campaign. 8

If names intended to have been included in a vote
of thanks are accidentally omitted, or if errors occur
therein, they may be subsequently corrected, on motion
to that effect. h Or, the order may be discharged, so as



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