Copyright
Alpheus Todd.

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

. (page 59 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 59 of 85)
Font size
QR-code for this ebook


tion of persons for this sacred office.

The lord chancellor has the distribution of a very
large amount of inferior Church patronage, which he
is free to dispose of ' according to his notions of what
is due to religion, friendship, or party ; ' i but as a rule
the distribution of Church patronage by ministers of
the crown is not influenced by political considerations.*
In the appointment, or promotion, of naval and
military officers, and of persons employed in the civil



Hans. D. v. 158, pp. 1644-46.

h See Rep. on Off. Salaries, Com.
Pap. 1850, v. 15. Ld. John Russell's
Evid. 309, 1282.



4 Ld. Campbell's Lives of Chan,
v. 1, p. 20.

J Earl Granville, Hans. D. v. 207,
p. 1865.



IX EEGAED TO OFFICES AND PUBLIC OFFICERS. 019

branch of the Admiralty, political distinctions are
almost invariably overlooked. It is universally recog-
nised as the duty of those who are entrusted with the
patronage of the crown, to be guided in the distri-
bution of promotion and professional employment in
the army and navy by the rules of the service and the
merits of the case, and to permit no interference by
members of Parliament to influence them in such
matters. k Any minister would incur inevitable dis-
grace who should be actuated by political or party
preferences on such occasions, and should select inferior
men, because of their political opinions. 1 Promotion in
militia regiments is, as a rule, conducted on the prin-
ciple of seniority. 111

In the appointment or retention in office upon a
change of ministry of ambassadors or ministers abroad,
and other members of the diplomatic service, their
personal fitness is solely considered irrespective of their
political opinions, which practically are never found
to interfere with the impartial discharge of their official
duties. 11

It is the same with regard to appointments to Judicial

offices.

judicial offices. With the exception of the office of
lord chancellor, which is political and ministerial, and
of the post of chief justice of the Queen's Bench, which
is usually conferred upon the law officers of the crown,
no such principle would be permitted to prevail in
England, as that seats upon the bench should be given
to political partisans.

Lord Lyndhurst was made chief baron of the Exchequer in



k Grey, Parl. Govt. p. 160. Cora. v. 10, p. 71. Index to Rpt. p. 480.

Pap. (on Admiralty), 1861, v. 5, pp. Olode, Mil. Fore. v. 2, p. 92.

52, 109. Clode, Ml. Fore. v. 2, p. m Hans. D. v. 172, p. 1472.

741. Earl of Derby, Rep. Diplo-

1 Mr. Grey and Mr. Fox's speeches, matic Service, Com. Pap. 1870, v. 7,

Parl. D. v. 4, pp. 342, 358. Ad- pp. 465, 471, 483.

miral Seymour's Evid. before Com 6 . Yonpre, Life Ld. Liverpool, v. 1,

oil Navy Promotions, Com. Pap. 1863, p. 265. Hans. D. v. 1 73, p. 205.



620 THE ROYAL PREROGATIVE

1831, upon the recommendation of his political rival Lord Brougham,
who then held the great seal. Lord Campbell, when lord high chan-
cellor, appointed Colin Blackburn to be a judge of the Court of
Queen's Bench, although he was of opposite politics, and was only
known to the chancellor by his professional reputation.? And on
July 3, 1865, the attorney -general stated in the House of Commons
that Lord Chancellor Westbury had exercised his judicial patronage
without regard to the interests of party ; and that he had selected
a political opponent (Mr. Montague Smith, a Conservative member
of the House of Commons) to fill the last vacancy upon the bench,
and another Conservative gentleman to be chief registrar of the
Court of Bankruptcy, because he considered them to be the most
qualified persons for the said offices. In the appointment of County
Court judges he had also striven to select men for their merit and
qualification, without regard to personal or party considerations.^

In Ireland, it is true, a greater laxity on this point
has prevailed ; and while the Derby administrations, in
1852 and 1858, afforded examples of promotion from
the Irish bar of political opponents of the government,
yet ' no doubt, in Ireland, promotions to the bench
have been made in general, by both sides, on party
grounds.' r

offices in Subordinate offices in the superior courts of justice

judges. in England are in the gift of the heads of the several
courts, to whom such officers are responsible for their
proper conduct. 8 A different practice prevailed in
Ireland, where, by an ancient prerogative of the crown,
certain of these appointments were conferred by the
lord lieutenant. But in 1871 this judicial patronage
was conferred upon the judges, save only that junior
clerkships in the courts are now filled up by open
competition. 6

Upon the retirement of Sir John Rolt, one of the lords justices

v Mac. Mag. v. 11, p. 18. revising barrister, Ib. v. 198, pp. 1487,

i Hans. D. v. 180, p. 1128; Ib. 1535, 1541. In appt. of official

v. 189, p. 1611. referees under Judicature Act, Ib. v.

' Ib. v. 173, p. 205 ; v. 220, p. 430. 229, p. 1309.

8 Question raised as to proper * Hans. D. v. 189, pp. 842, 1602.

exercise of judicial patronage in But see 34 & 35 Viet. c. 72, 14

appt. of clerk of assize, Hans. D. v. Hans. D. v. 235, p. 1572.
192, pp. 343, 497. In the appt of



IN REGARD TO OFFICES AND PUBLIC OFFICERS. G21

of appeal in 1868, the Derby government offered the situation to
Sir Roundell Palmer, M.P., who had been attorney -general in Earl
Russell's administration. But the offer was declined. Shortly
afterwards, the same ministry conferred a vacant judgeship upon
Mr. Hannen, a Liberal. And in the succeeding administration of
Mr. Disraeli, Sir W. Page- Wood, a Liberal, was appointed one of
the lords justices ; and Mr. G. M. Giffard, also of Liberal politics, a
vice-chancellor.

As respects civil service nominations, for minor civil ser-

[v* i n i . -, . ,. vice nomi-

appomtments to omce, before the introduction of the nations,
competitive system, Lord Palmerston has testified that
they were ' often given without regard to political con-
siderations.' 11

Promotions in the civil service are wholly unin- rrom -

. . * tions.

fiuenced by party motives/ In fact, stringent regula-
tions have been adopted and enforced by government
to discountenance attempts on the part of public officers
to obtain promotion by such means. Circulars have
been addressed to members of Parliament by the heads
of the principal administrative departments, calling
attention to orders in council, which strictly forbid the
endeavour to interest members of Parliament in appli-
cations for promotion or pecuniary advancement, and
declaring that any attempt to obtain promotion by
political or other indirect influence will be punished. w
On the other hand, some public servants are forbidden
by law (post, p. 633) to exercise the elective franchise,
lest they should be subjected to undue political influence
by their official superiors. In other cases, where the
franchise is not restrained, care has been taken to pre-
vent its independent exercise from being interfered with/
These measures, coupled with the general adoption of
the system of competitive examinations, in appoint-
ments to office, have done much to prevent the abuse
of patronage for party purposes.



Hans. D. v. 172, p. 968 ; v. 187, p. 621. w See post, p. 649.

" Ib. v. 207, p. 1865. x lb. p. 633.



622 THE EOYAL PEEROGATIVE

The right of making appointments in the public
service has been, in certain cases, expressly conferred
upon the crown by statute. Nevertheless, since the
introduction of the competitive system, appointments
are ordinarily conferred only in accordance with the
provisions of orders in council regulating the same.
But so long as the statutes are unrepealed, the crown
possesses a reserved right to exercise the statutory
power in such cases, and to set aside, at its discretion,
the regulations established by order in council. 7
Crown The entire patronage of the crown in Great Britain

^Ss was computed in 1863 at about 105,000 offices. 2 After
extentand excluding the different classes of appointments in regard
tion. to which, as we have seen, the influence of party was but
small, there still remained a considerable amount which
was regarded as being available for distribution amongst
the friends and supporters of the existing adminis-
tration. Patronage of this description was generally
exercised through the instrumentality of the parlia-
mentary secretary to the Treasury, or the political
secretary of the department concerned, and upon the
recommendation of members of Parliament, particularly
when they were avowed supporters of the government/
But the recommendations of members did not bind the
discretion of the executive, and were sometimes dis-
regarded in favour of a more suitable choice. b

But parliamentary influence was often exercised in regard to
nominations, or first appointments, in the civil service, irrespective
of the member being a supporter of government. Thus, in 1867,
Sir P. O'Brien, a Liberal member of the House of Commons, wrote



y Sir W. Dunbar, Rpt. Pub. Accts. 1873 they were computed to number

Com. Pap. 1874, v. 6, pp. 37, 50. 43,509 (irrespective of civilians in

* Hans. D. v. 172, p. 95C. Of this military and naval depts.) Ib. v.

number it is stated that the employes 214, p. 613.

of the civil service amounted, in * Com. Pap. 1854-55 on Civ. Ser.

1862, to 43,163, while in 1822 they v. 20, p. 112. Hans. D. v. 188, p.

were only 18,500. 16. v. 176, p. 1024; v. 193, pp. 323, 1286 ; v. 207,

1,944. But of late years the empires p. 1706.

in the civil service have considerably b Hans. D. v. 197, p. 1421.
increased. Ib. v. 193, p. 1187. In



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 023

to the postmaster-general of Lord Derby's administration, saying,
' During the fifteen years I have been in Parliament, I have been
allowed the privilege of nominating young men to offices in various
branches of the public service, nearly all whom, as far as I can
recollect, have given satisfaction.' c But all parliamentary patronage
is now abolished ; and the rule is laid down that ' applications [for
appointments] through members of Parliament are calculated to
defeat rather than promote the object in view.' d

In the United States the delegates to Congress from the several
states are gradually absorbing the executive function of appointing
to all minor offices, as vacancies occur in the states they represent.
The evil tendencies of this practice are manifold. 6

It included first appointments to minor and subordi-
nate offices, and nominations, under the competitive
examination system, until that gave place to ' open
competition.' The principal members of the ministry
were careful, however, to hold themselves aloof from
such transactions, lest their position should be compro-
mised thereby/ Nevertheless, in every branch of the
public service the political head of the department was
responsible, if not for every individual appointment, at
any rate for the regulations under which the patronage
was bestowed. 8

The system of competitive examinations, to which Competi-
reference has already been made, was introduced for
the express purpose of doing away with abuses in
regard to patronage. From its first organisation the
constitution of the civil service of the crown has been
regulated by royal orders in council. 11 The principle
of competitive examinations for appointments in the
civil service was introduced by the same authority by
an order in council of May 21, 1855, 1 having been

c Case of A. G. Duffy, Com. Pap. appoint'.), 1852-3, v. 25, pp. 300,

1867-8, v. 41, p. 317 ; Hans. D. v. 344, 363.

193, p. 1409. * Ib. Rept. p. xii.

d Kept. Civ. Serv. Inquiry Com". h See Sir James Stephen's letter

Com. Pap. 1875, v. 23. Mr. Mundella, on reorganisation of Civ. Serv. in

M.P., on this point, N. Am. Rev. v. Com. Pap. 1854-5, v. 20, p. 81.

124, p. 19. Hans. D. v. 138, p. 2157 ; v. 139,

Am. L. Rev. v. 5, p. 373. p. 682.

f Com. Pap. (Rept. on Dockyard



624



THE ROYAL PREROGATIVE



Competi-
tive

examina-
tions.



recommended in November 1853, in a report on the
organisation of the Permanent Civil Service, by Sir
Stafford North cote and Sir Charles Trevelyan. Kesolu-
tions in favour of this principle were agreed to by the
House of Commons on April 24, 1856, and on July 14,
1857. Nevertheless, its adoption in the various parts
of the service was gradual. 1 "

In the House of Commons, a debate arose on April 1, 1862, and
July 17, 1863, wherein the objections to the new system were very
forcibly urged. The government upon both occasions explained the
extent to which the system had been already adopted, and showed
that the principle of competitive examinations was being gradually
introduced throughout the public service. But Lord Grey, in the
new edition of his Parliamentary Government, points out the peculiar
abuses which have arisen in the working of the competitive system,
and strenuously condemns it, as being ' radically wrong,' and calcu-
lated to obtain in general a less efficient class of public servants
than those appointed by government under the old system. k

In some departments open competition was the rule
from the first ; in others a limited competition among
three candidates. In the civil and medical services of
India, 1 the army generally, certain naval establishments,
and nearly all the civil departments of the state, open
competition was established, and thereby ceased to
afford patronage to ministers.

Twenty years before, in the India Bill of 1833, Mr. Macaulay
had proposed to rearrange the system of appointment to the Indian
civil service on the basis of competition. But though agreed to by
Parliament these clauses were a dead letter, and were afterwards
repealed. Nevertheless they were re-enacted, by the help of Macau-
lay's powerful advocacy, in the India Act of 1853.

The existing arrangements in regard to competitive
examinations for military or first appointments in the



J Com. Pap. 1868-9, v. 18.

k See also Mr. Guilders' and Mr.
Hunt's observations, Hans. D. v. 193,
pp. 1191, 1197; Quar. Kev. v. 127,
p. 64 ; Ed. Rev. v. 139, p. 330 ; Duke
of Northumberland's address in Social
Science Trnns. 1870, p. 9 ; Helps on



Government, pp. 62-78 ; Sir A.
Helps' Letter to the Civ. Serv. In
quiry Com", in 1874 ; Cora.Pap. 1875,
v. 23, p. 361 ; 19th Cen. v. 8, p. 715.
1 As to working of system in India,
see Com. Pap. 1870, v. 7, p. 449.



IN EEGAED TO OFFICES AND PUBLIC OFFICERS. 625

civil service as prescribed by various orders in council,
passed in the years 1862 to 1872, are explained in the
Seventeenth Eeport of the Civil Service Commissioners. 111

In 1860 a select committee of the House of Com- civil
mons was appointed to consider the whole subject of
civil service appointments. They recommended the
application of the method of limited competition to
certain classes in the service, as preliminary to the
future extension of a system of competitive examina-
tion for all junior clerkships in the civil service, which
should be open to all her Majesty's subjects. 11 These
recommendations were approved of by the government,
and measures taken in 1861 to apply them to the clerk-
ships under the control of the Treasury.

On April 9, 1869, Mr. Fawcett moved to resolve
that in the opinion of the House of Commons all
appointments to the civil and diplomatic services
ought to be obtained by open competition. But as the
adoption of this principle would require ' a thorough
reorganisation of the civil service, with a view to a
division being made between the merely mechanical
and the intellectual work ' a duty which the govern-
ment could not then venture to undertake ministers
opposed the motion, and it was lost on division. p On
February 25, 1870, Mr. Fawcett renewed his motion,
but was met by an assurance that the government con-
templated the speedy introduction of a system of open
competition on a sufficiently large scale to give it a fair
trial, whereupon the motion was withdrawn. It was
afterwards stated that, should the new system prove
successful, it was certain ultimately to become uni-
versal.* 1

By order in council, dated June 4, 1870, the prin-
ciple of public open competition for admission into the

- Com. Pap. 1872, v. 19. P Hans. D. v. 195, p. 480.
n Ib. I860, v. 9, p. 14. < Ib. v. 203, p. 15.3.

Ib. 1867-8, v. 22, p. 6.

VOL. I. S S



626 THE EOYAL PKEROGATIVE

Com- civil service was established, and applied to nearly all
system 6 the public departments, the Home and Foreign Offices
and British Museum 1 " alone being at that time exempted
from the operation of the new system, on account of
the highly confidential and delicate nature of a large
portion of the duties transacted therein ; likewise the
two Houses of Parliament, for special reasons. From
the Civil Service Commissioners' Eeport in 1872, it
appears that in the House of Lords and in the
Foreign Office (but not including the diplomatic ser-
vice) the system is being gradually adopted. 8 And
in 1874 the Home Office introduced the competitive
system.*

So that now patronage has been abolished, and the
principle of competitive examinations introduced in all
the public departments, except the diplomatic service
and the British Museum, wherein the trustees have
hitherto declined to adopt the recommendations of
the Treasury, though they have declared themselves
favourable to a scheme of limited competition. 11 Com-
petitive examinations have also been established in
regard to first appointments to commissions in the
army. r The system was likewise introduced into
the navy in 1869, but after a short trial it was
abandoned in 1875. w In all other departments it has
been determined to adhere to the competitive system,
as being (if not the best system that could be devised)
the one most suited to our present social and political
condition, and as being of incalculable advantage to

r Hans. P. v. 217, p. 1454. of dispensing with the orders in

15th, 16th, and 17th Reps. Civ. council establishing the competitive

Serv Comms. Com. Pap. 1870, v. 19; examinations. Com. Pap. 1873, v.

1871, v. 17 ; 1872, v. 10. Mr. Glad- 39, p. 103.

Ftone, Hans. D. v. 201, p. 1944; v. ' Rep. Com e . Puh. Accts. Com.

202, p. 388 ; aud see Ib. v. 203, pp. Pap. 1874, v. 6.

153, 254. As regards the Foreign u 2nd Rep. Civ. Ser. Comn. Com.

Office, see Rep. Dip. Serv. Com. Pap. Pap. 1875, v. 23, pp. 460, 548.

1870. v. 7, p. 456 ; Ib. 1872, v. 7, Hans. D. v. 234, p. 858.

p. 407. The Treasury claim to have v See post, v. 2.

a discretionary right in certain cases w Ib.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 627

the heads of public departments in relieving them of
patronage.* [Certain changes were made in 1876 in
the working of the system in reference to candidates
for the Indian civil service.] y

On February 23, 1877, it was moved in the House
of Commons to resolve that the principle of open com-
petition now generally prevalent in the public service
should be extended to the Foreign Office and the
diplomatic service. [In the Foreign Office some six
to fourteen nominees of the foreign secretary are sub-
jected to a competitive examination, and in the diplo-
matic service members are admitted by nomination on
a test examination.] After debate the motion was
negatived on division.

But in cases where appointments have been made
in public departments without the intervention of the
civil service commissioners, through inadvertence on the
part of the heads of such departments, and without
any default on the part of the persons so appointed,
Acts have been passed to validate the appointments,
and to entitle the appointees to the benefit of the Super-
annuation Act. z

Even the officers and servants attendant upon the Pariia
two Houses of Parliament are not appointed by the
Houses themselves, but either (as in the case of the
principal officers) by letters-patent from the crown, or
by the lord chancellor, or the clerk, sergeant-at-arms,
or usher of the black rod, or by the Speaker, according
to the department to which the particular office may
belong, subject to the approbation of the House itself.



* Marq. of Salisbury, Hans. D. of the classes of civil servants who
v. 230, p. 1467. are not now appointed by open com-

y 20 Rep. Civ. Serv. Comn. Com. petition, but selected by a minister or

Pap. 1876, v. 22, pp. 5-10. permanent head of department, see

* 36 Vic. c. 23; Hans. D. v. 225, Com. Pap. 1877, v. 15, p. 502. For
p. 1482; 39 & 40 Viet. c. 68 ; 1st lists of persons irregularly appointed.
Rep. Pub. Accts. Com. Pap. 1875, confirmed in office under the Act,
v. 8, Evid.p. 35. For an enumeration Com. Pap. 1877, v. 49, pp. 391, 585.

as 2



628



THE ROYAL PREROGATIVE



The clerk and clerk assistant of the House of Lords are both
appointed by the crown. The clerk of the House of Commons is
appointed by the crown, upon the recommendation of the prime
minister, 8 the clerk's assistant by the crown, upon the recommenda-
tion of the Speaker. b Such functionaries in either House are ' re-
movable only by her Majesty, upon an address of the House to her
Majesty for that purpose.'

It is not usual for any direct resolution of sanction
to be passed, except in the case of the clerks at the table
of the House of Lords. But it is competent to com-
mittees of either House to report their opinions as
to the filling up of vacancies, and as to the salaries,
arrangements, and classification of the establishment
generally. The House of Commons appoint their
Speaker and the chairman of the committee of Ways
and Means ; the House of Lords their chairman of
committees, and the examiners of standing orders for
private Bills. d

As a necessary consequence of the division of the
civil service into political and non political officers, and
of the acknowledged supremacy of the members of the
public de- administration over all the subordinate employes, it is
partment. required by our parliamentary system that every branch
of the public service should be represented, either
directly or indirectly, in the Houses of Parliament.
This duty is performed by the political heads, who are
themselves solely responsible for every act of admini-
stration down to the minutest details of official routine.
Having entire control over the public departments,
they are bound to assume responsibility for every



Represen-
tation in
Parlia-
ment of
every



Hans. D. v. 114, p. 142.

b Ib. v. 140, pp. 258, 447 ; 5 Geo.
IV. c. 82 ; 19 Vic. c. 1 ; Com. Pap.
]856, v. 51, p. 1. As to appoint-
ments in clerks' depart, see Ib. 1847-8,
v. 18, pt. 1, p. 95 ; Hans. D. v. 202,
pp. 386, 388 ; v. 204, p. 233. In the
eergt.-at-arms' depart. Ib. v. 16, p.
45. As to appointments in H. of



Lords, see 5 Geo. IV. c. 82 ; Lords'
Jour. v. 67, p. 622 ; v. 80, pp. 122,
177 ; v. 94, p. 66.

c Com. Pap. 1 847-8, v. 18, pt. 1,
p. 13 ; Lords' Jour. v. 67, p. 621 ; v.
77, p. 1130; v. 94, p. 276.

d Hans. D. v. ] 14, p. 48 ; S. O. H.
of Lords. May, Parl. Prac. 1883,
pp. 507, 667.



IN REGAED TO OFFICES AND PUBLIC OFFICERS. 629

official act, and not to permit blame to be imputed
to any subordinate for the manner in which the
business of the country is transacted, except only in
cases of personal misconduct, for which the political
chiefs have the remedy in their own hands. 8

' It is no arbitrary rule,' says Lord Grey, * which Subordi-
requires that all holders of permanent offices must be a n p^ma-
subordinate to some minister responsible to Parliament, jj^^"
since it is obvious that without it, the first principle of some poii-
our system of government the control of all branches
of the administration by Parliament would be aban-
doned.' f But the control of Parliament, as will here-
after appear, is general, and does not admit of any
direct interference with the subordinate officers of
government.

So strict is the rule of ministerial supremacy as to
forbid any orders to be given to any public servant of the
crown, by either house of Parliament, except through
the regular channel of official communication, namely,
a secretary of state, or other officer who may be
authorised to convey the royal commands. g

So, also, as regards the dismissal of persons from Absolute
public employ ; the crown possesses by virtue of its
prerogative an absolute legal power to dismiss any of its
servants holding office ' during pleasure,' on the advice public
of its responsible ministers. 11 Such a power ' is indis-
pensable, in order to give to the latter that authority
over those by whose agency and assistance they carry



Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 59 of 85)