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charters, a reserved legislative power of amendment or
repeal ; thereby re-establishing over such bodies, as a
condition precedent of their existence, the old common
law principle of parliamentary omnipotence. k Similar
power is reserved in Canada, by the Interpretation Act
of 1867, clause 7, 34 ; by the General Eailway Act
of 1868, clause 22 ; and by the Joint Stock Companies
Act of 1869, clause 43.

The decision of the Supreme Court, in the Dartmouth College Prece-
case, was professedly based upon the fact that the United States dents -
possess a written constitution, binding alike upon Congress and
upon the state legislatures ; and that ' the will of the people, as
declared in the constitution, is the first law.' 1 It is assumed to be
the duty of the Supreme Court to construe that constitution, and
to declare whether any impugned law is in conformity with it. The
tenth section of the United States Constitution declares any law to
be unconstitutional which impairs the validity of a contract. Under
this clause the doctrine embodied in the Dartmouth College case was
enunciated. By degrees this doctrine was made to cover grants to
railway companies and industrial corporations, which had been
thoughtlessly and improvidently granted ; and monopolies, injuri-
ously affecting the whole community, came to be regarded as vested
rights. m

In 1852 (by Act 16 Viet. c. 39) the charters granted in 1851 to the
Montreal and Kingston, and to the Kingston and Toronto Railway
Companies, were severally repealed, in order that leave might be
given to a grand trunk company to construct the whole line from
Toronto to Montreal. This proceeding of the legislature was pro-
tested against and resisted, at first, by the Montreal and Kingston
Railway Company ; but finally, as is expressed in the above statute,
they ' expressed their willingness ' to the abrogation of their charter,
provided the expenses they had already incurred were repaid.

In 1861, the Canadian Legislature (on complaint of parties inter-
ested) determined to annul certain rights granted by local Acts to



k Am. L. Eev. v. 1. pp. 451-476. Sedgwick, Construe. Stat. p. 125.
But see Ib. v. 8, p. 189. Proffatt on m Cont, Rev. v. 28, p. 689.
Private Corporations, pp. 17-34. n Canada Leg. Ass y . Jour, 1852-3,

1 Cooley, Const. Limit, p. 4. A pp. xx.



608 ROYAL PREROGATIVE IN GRANTING CHARTERS.

the owners of certain toll bridges over the Riviere des Prairies, but
in so doing a select committee of the legislative council on the Bill
recommended that compensation should be given by the government
to the said owners. Pursuant to this recommendation, the Board
of Works awarded indemnity to the bridge proprietors. 1 *



Canada Leg. Council Jour. 1852-3. P Can. Ssse. Pap. 1862, No. 25.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 609



CHAPTEE XV.

EOYAL PREROGATIVE IN REGARD TO OFFICES AND
PUBLIC OFFICERS.

THE crown, besides being the fountain of dignity and Preroga-
honours, is likewise entrusted by the constitution with regard to
the sole power of creating such offices, for carrying on offices and

x-u vv <. .-u J- -x r ,1 P ublic

the public service, or maintaining the dignity 01 the officers,
state, as may be required. It has also, by virtue of the
prerogative, a right to make choice of all persons to be
appointed to fill places of trust and emolument under
the crown ; a to determine the amount of remuneration
to which they shall be respectively entitled ; and to
dismiss them from office, according to its discretion.

Every office and employment in the public service
derives its authority either directly or indirectly from
the crown ; and in the eye of the law is accounted
honourable, because implying a superiority of abilities ;
and being always presumed to be filled by the person
best qualified for the same. Offices are in the gift of
the crown, because the law supposes that no one can
be so good a judge of the merits and qualifications of
public officers as the sovereign by whom they are
employed. b

As the king may create new titles, so may he create
new offices, but with this restriction, that he cannot
create new offices with new fees annexed to them, nor
annex new fees to old offices ; for this would be a tax



* Macaulay, Hist, of Eng. v. 4, b Bowyer, Const. Law, p. 147.
p. 303.

VOL. I. R R



CIO THE ROYAL PREROGATIVE

upon the people, which cannot be imposed but by Act
of Parliament. Neither may the crown grant ancient
offices in other manner and form than has been usual,
unless with consent of Parliament ; d nor create an office
that is inconsistent with the constitution, or prejudicial
to the subject, though without fees. 6 Neither can a
judicial office be granted for a term of years, or in
reversion. Ministerial offices, however, are not subject
to this rule. f With these limitations it is competent to
the crown to create a new office, or department of the
executive government, whenever the exigencies of the
public service may require it ; and to determine the
rate of salary to be affixed thereto. g The statutes
50 Geo. III. c. 117, and 56 Geo. III. c. 46, were the
Acts by which the civil service of the crown was for
the first time formally recognised, and constituted upon
a parliamentary basis. h

In cases which admit of delay it is customary to
obtain the previous sanction of Parliament to the erec-
tion of new offices ; and it is sometimes provided, that
the appointment of individuals to a new office created
by statute shall be deemed to be temporary only until
the salary of such office has been granted by Parlia-
ment. 1

In former times, and even so recently as the reign of
George II.. the patronage of the crown was oftentimes
shamefully abused. Persons were appointed to places
of trust and emolument, or removed therefrom, on mere
political grounds, and in furtherance of political in-

" 2 Coke, Inst. 533. Com. Dig. proposed additional judge in Chan-

Prerog. D. 3. eery, Mir. Parl. 1830, pp. 2269, 2420,

* Chitty, Prerog. p. 81. 2560 ; and on objection raised in

e Ib. p. 81. Bowyer, Const. Law, Com 6 , of Supply to an apptmt. of a

p. 175. certain person as Inspect.-Gen. of

r Com. Dig. Officer, B. 7. Marines, Ib. 1830-31, pp. 493, 495,

Hans. D. v. 190, p. 986 ; v. 227, 1098. Mr. Gladstone's remarks on

p. 500 : post, v. 2. the proposed creation of a new office

h West. llev. v. 49, p. 464. to draft Government Bills, Hans. D.

' 33 & 34 Viet. c. 17; 34 & 35 v. 185, p. 1236.
Viet. c. 70, 3. And see debates on



IN REGARD TO OFFICES AND PUBLIC OFFICERS. Gil

trigues. Even persons holding non-political offices, such Public
as lord- lieu tenants of counties, or having commissions
in the army and navy, were not unfrequently dismissed
by order of the king, for votes given in Parliament.'

On March 6, 1780, a debate arose in the House of Lords for an
address to the king, to be informed ' by whose advice the Marquis of
Carmarthen and the Earl of Pembroke had been dismissed from the
office of lord-lieutenant, by reason of their conduct in Parliament.'
The motion was opposed by the ministry, as intrenching upon the
king's prerogative of choosing his own servants, and was negatived.
And see the case of Earl Fitzwilliam, who was removed from the
lord -lieutenancy of Yorkshire, for taking part in the proceedings of
a political meeting against the government, at a time of great politi-
cal excitement. k

Sinecure offices, gifts of places in reversion, and
secret pensions for political services to the court were
multiplied ; and the illegitimate influence of the crown
was thereby greatly increased. But chiefly through
the patriotic labours of Edmund Burke, in the cause of
economic reform, these evils were exposed and reme-
died. Acts of Parliament were passed in the early
-part of the reign of George III. to abolish sinecures,
to regulate the grant of offices, and to reform abuses
connected therewith. Since the commencement of the
present century, a marked improvement has taken place
in the practice of governments, and in the tone of
public opinion, respecting the distribution of patronage.
No minister would now venture to incur the responsi-
bility of abusing the prerogative, in the choice and
dismissal of servants of the crown, by such acts as
were committed with impunity less than a century ago.
Public opinion has gradually brought the exercise of
these powers of administration under the control of
certain rules, which, though for the most part enforced
by no written law, are yet practically acknowledged



May, Const. Hist, v, 1, pp. 24, 29, 40; Ewald, Life of Walpole, p. 247.
k Lewie, Administrations, p. 397.

E R 2



612



by the government, and have put an end to many
abuses. 1

The most important rule of modern times, in regard
to the civil servants of the crown, is that whereby they
have been divided into two classes political and non-
political, of which the former is supreme and the latter
subordinate. The former consists of cabinet ministers
and other members of the administration, and the
latter of the permanent members of the civil service." 1
The principle upon which this division is made, is that
certain officers have duties to perform that are of a
decidedly political character, or are otherwise so inti-
mately connected with the person of the sovereign as
to afford peculiar facilities for influencing the royal
mind. All such functionaries, as a general rule, have
seats in one or other of the Houses of Parliament, and
are required to co-operate with each other in further-
ing the policy of the government. And they necessarily
relinquish their offices upon a change of ministry."

The non-political civil servants of the crown may be
considered as virtually ineligible to a seat in Parlia-
ment. They have been, for the most part, excluded
from the House of Commons by express statutes ; p but
even where there is no positive prohibition, the fact of
a person holding a permanent official appointment under
the crown operates as an indirect disqualification for
political life, inasmuch as every successive ministry in
England is formed upon party principles, and ' no ad-
ministration could act with colleagues who were mem-
bers of the House, unless they were willing to act as



1 Grey, Parl. Oovt. new ed. 285.

m Upon this principle a parlia-
mentary under-secy. takes precedence,
in rank and responsibility, over a
permanent under-secy., however de-
pendent the former may be upon the
latter in his first appointment for
guidance and information. Rep.



Com c . on Diplomatic Service, Com.
P. 1871, v. 7, pp. 295, 339.

n See further on these points, v. 2,
c. ' On the Cabinet Council.'

See Com. Pap. 1854-5, v. 20,
p. 400.

P See v, 2.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 613

members of the same party.' q Their exclusion from
the political arena is the price they pay for their
tenure of office, being virtually that of good behaviour.
For whether they were originally appointed for political
reasons, or otherwise, nevertheless, ' as a general rule,
the civil servants who do not sit in Parliament, hold Principle
their offices technically and legally during the pleasure ne nce in
of the crown, but are in practice considered as having ^vice! 1
a right to remain in undisturbed possession of them, so
long as they continue to discharge their functions pro-
perly. This principle is so universally recognised, that
the dismissal of a person holding a permanent office is
never heard of now, except for misconduct.' r

' The distinct line drawn between permanent and
political offices, together with the complete establish-
ment of the practice of regarding the former as held
during good behaviour, has diminished the evils inci-
dental to changes of administration.' 'By allowing
these transfers to affect only a comparatively small
number of high offices, and by retaining the great
majority of the public servants permanently in their
situations, the experience and traditional knowledge
they possess of the business of the several departments
of the state are rendered still available for the conduct
of affairs.' s

Contrast this picture with the results of the system which now American
prevails in the United States of America, where thousands of offices system.
are periodically transferred from the adherents of one party to
those of another, upon the accession of every new president ! This
practice is contrary to the original principles of the American Con-
stitution, which provided for a permanent executive system, inde-
pendent alike of political interference, and of legislative control.
It is contrary, likewise, to the practice of their government from
the days of Washington to those of President Jackson. Since then,
however, the right of appointments to office has been gradually
absorbed by the Senate and House of Representatives, and is now

" Kept. Board of Admiralty, Com. 287 ; Com. Pap. 1854-5, \. 20, p. 103.
Pap. 1861 , v. 5. s Grey, pp. 288, 289 ; Hearn, Govt

' Grey, Parl. Govt. new ed. p. of Eng. p. 239.



614 THE ROYAL PREROGATIVE

wholly controlled by those bodies, irrespective of the opinions of
the president. As a natural consequence, the permanence, dignity,
purity, and efficiency of the civil service have been completely over-
thrown, and the entire community most injuriously affected by the
corrupt use of patronage for political purposes. The existing prac-
Evils of tice of rotation in office exercises moreover a most pernicious in-
American ^ uence u pon the employes themselves by diminishing the sense of
system, of personal responsibility, and by fostering a careless indifference to
frequent the obligations of office, whilst its emoluments are greedily sought
lai zf 6 ' for, and too often fraudently increased. It has deprived the state
of the services of men of character and qualifications, hindered the
progress of departmental improvement, and compelled every succes-
sive batch of employes to acquire the merest rudiments of official
routine, when they should be profiting by the traditions and expe-
rience of office to bring their several departments into the highest
possible condition of efficiency. The demoralising effects of this
system upon the public welfare are beginning to attract serious
attention. A partial reform of the civil service was sanctioned by
an Act of Congress in 1871, upon the recommendation of President
Grant, and a commission was appointed which reported in 1874 in
favour of steps to give effect to the reforms already initiated ; but
Congress has not hitherto sustained the efforts which have been
made by the president in this direction.* Meanwhile some of the
ablest and most respectable organs of public opinion in America
have announced that a vital change in this particular has become
essential to the maintenance of their republican institutions. One
writer, after pointing out the nature and extent of the existing evil,
urges the necessity of adopting the usage of Great Britain in regard
to office-holders, declaring that ' we must have a general rule for the
selection of employes ; their tenure of office must be made dependent
on their good behaviour ; there must be promotion as a reward for
fidelity and ability, and pensions as a refuge for old age. In other
words, some inducement must be held out to honest and competent
men to enter the public service, to remain in it, and behave well in
it.' u This is a striking testimony to the superior advantages of the
British system.

In 1877, President Hayes instituted enquiries into the working
of the system in Great Britain, without waiting for further con-
gressional action. This led to the preparation and publication, in

* President's Message, April 15, 122-124. Ib. v. 109, pp. 443-475 ;

1874, forwarding Report of Civil v. 124, p. 16; Am. Law Rev. v. 6,

Service Commission. Senate Poets, p. 159. See also in regard to work-

1873-4, No. 63. See Am. Law Rev. ing of American political system and

v. 11, p. 197; North Am. Rev. v. its notorious inferiority to that of

127, p. 273. Gt. Britain, North Am. Rev. v.

u North Am. Rev. v. 101, pp. 118, p. 1 ; Quar. Rev. v. 127, p. 61.



IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 615

1880, of a report by Mr. D. B. Eaton, which affords a comprehen- Aypoint-
sive history of the whole subject of civil service reform in England, ments to

The principle which regulates the choice of persons
to fill political offices under the British crown will be
explained in another part of this treatise/ It is here
material to notice that, although appointments to office
under the crown are made in the name of the sovereign,
it is contrary 1 to the spirit of the constitution for any
such appointments to be made except through a re-
sponsible minister, and after consultation and agreement
with the prime minister. w The complete and unreserved
recognition of this principle is of recent date. George HI.
was fond of the exercise of private patronage and disre-
garded, sometimes, the restraint of constitutional rules. x
His son and successor, George IV., was of a similar
disposition in this respect. In 1829 he directed the
military authorities to issue patents conferring two mili-
tary appointments, without having previously taken
the advice of the prime minister (Duke of Wellington)
thereon. The home secretary (Mr. Peel) demurred to
this transaction ; and agreed with the premier that, had
-the appointments been to political or ecclesiastical
offices a stronger remonstrance would have been advis-
able. But in consideration of the king's health, and
the unobjectionable selection of persons made by his
Majesty to fill these vacancies, they contented them-
selves with recording, in an official memorandum, their
sanction to the appointments. But, in the event of the
recurrence of a similar proceeding, it was agreed that
the king should be informed that the secretary of state
ought not to forward instruments conferring appoint-
ments to his Majesty for his signature, without
previously communicating with the first lord of the
Treasury, and ascertaining that he is acting with his
sanction and consent/

T See v. 2. 3 Wellington, Desp. Civil Series,

w See ante, p. 271. v. 6, pp. 162, 166, 181. Another

* Ib. p. 281. case, Ib. p. 300.



616



THE EOYAL PREROGATIVE



Appoint-
ments to
perma-
nent
offices.



Political
patronage.



But from and after the complete establishment of
the principle of open competitive examinations for the
selection of candidates to fill up vacancies in the civil
service of the crown in the United Kingdom, which
dates from the year 1870 political patronage has been
entirely abandoned, and there has been a complete
surrender of the power formerly exercised by members
of Parliament over appointments to office. 2

In selecting individuals to fill subordinate places of
honour and emolument, a great responsibility devolves
upon the existing administration. Public opinion will
no longer tolerate the prostitution of offices for political
services that so often disgraced our history in former
times. It is now an admitted necessity, that every
one appointed to an office of trust, however small,
should be qualified for his post, otherwise the choice
will bring discredit upon the government, and may lead
to the withdrawal of public confidence and parliament-
ary support from those who are accountable for the
same. But so long as this principle is not lost sight of,
it is acknowledged to be the privilege of an administra-
tion to give the preference, in appointments to office,
to their political friends and supporters ; for among the
powers that are required to enable a government to
perform its functions with efficiency, there are few more
essential than that of.reward. a ' The patronage of the
crown,' says May, b ' has ever been used to promote the
interests and consolidate the strength of that party in
which its distribution happened to be vested.' It is true
that the offer of places, as a corrupt inducement to vote
at elections, has long been recognised by the legislature
as an insidious form of bribery. But while carefully
avoiding the committal of any offence against the law,



1 Eaton, Civil Service, pp. 310,
431.



b May, Const. Hist. v. 2, p. 91.
2 Geo. II. c. 24 ; 49 Geo. III. c.



a Grey, Parl. Govt. p. 311 ; Row- 118, &c. ; Rogers on Elections, 316-
land's Eng. Const, p. 437. 347.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 617

the patronage of the crown within certain limits to be
presently noticed has been systematically, though not
invariably, distributed by the ministry of the day, ' as
a means of rewarding past political service, and of
ensuring future support.'

It is worthy of remark that the Earl of Shelburne (formerly
prime minister), a stanch Whig, accepted the Marquisate of Lans-
downe from the hands of Mr. Pitt ; continuing in Opposition, not-
withstanding ; though he took but little part in politics after his
retirement from office. d And in November 1858, during the Derby
administration, the Right Hon. W. E. Gladstone, M.P., was ap-
pointed lord high commissioner extraordinary to the Ionian Islands,
from a sense of his peculiar fitness for the post, and notwithstand-
ing his being a leading member of the Opposition. 6

' The greater part of all local patronage has been
dispensed [by the patronage secretary to the Treasury]
through the hands of members of Parliament, sup-
porting the ministers of the day. They have claimed.
and received it as their right ; and have distributed it,
avowedly, to strengthen their political connection.' f

On May 24, 1860, the then lord-lieutenant of Ireland (Lord
Carlisle) was called upon in the House of Lords to defend an ap-
pointment he had made to a lieutenancy in an Irish county. While
vindicating the propriety of his choice, he admitted that if he had
had recourse to persons differing in political sentiment from the
government, he might have found one or two persons more eligible
for the post ; but, he added, ' I think it due to those who concur
in political opinion with her Majesty's government, whenever I
have to assign stations of honour and distinction, unless there is
some strong reason to the contrary, to give the preference to those
who entertain the opinions and support the principles to which I
myself owe the position I hold, and the power I possess of dealing
with such matters at all.' ' This,' he continued, ' has been the
general practice in this country ; ' in proof of which assertion he



d Lewis, Administrations, p. 55. of corruption which consists in the

e Com. Pap. 1859, sess. 2, v. 15, misuse of patronage as 'inherent in

p. 576. the system of parliamentary govern-

f And see Hans. D. v. 172, p. 954. ment.' For further particulars as to

Ib. v. 195, p. 482. Earl Grey, in his the usage of ministries in the dis-

essay on Parl. Govt. new ed. p. 48, tribution of the patronage of the

points out the tendency to encourage crown, Bee vol. 2, c. ' On the Office

corruption, and especially that kind of Prime Minister.'



618



THE ROYAL PREROGATIVE



Non-poli-
tical ap-
point-
ments.

In the
Church.



In the
army and
navy.



cited several notable examples.? On June 26 following it was
moved in the House of Commons to resolve that ' fitness has not
been primarily considered in certain appointments made by the lord-
lieutenant of Ireland ; ' but it being conclusively shown that this
charge was wholly destitute of foundation, the motion was nega-
tived without a division.

In January 1882, Sir John Holker, late attorney-general in the
Conservative (Beaconsfield) administration, was appointed by the
Gladstone (Liberal) ministry, a lord justice of appeal.

We now proceed to notice the exceptions to this
practice, which are both numerous and important.

In the first place, in the disposal of the ecclesiastical
patronage of the crown, it is not the rule that it should
be generally given to partisans of the existing govern-
ment. Appointments to bishoprics, and other dignified
offices in the Church, and to the more valuable livings
in the gift of the crown, are usually made upon the
recommendation of the prime minister, and he is careful
to consult the general interests of the Church, in such
nominations, without reference to mere political or
sectional opinions. 11

Lord John Russell stated that, with regard to bishops, he thought
the minister generally recommended persons who agreed with him
in political opinion, they having seats in the House of Lords. But,
of late years, a stricter impartiality has been observed in the selec-



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