Copyright
Alpheus Todd.

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

. (page 60 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 60 of 85)
Font size
QR-code for this ebook


on the public business, without which they could not
justly be held accountable by Parliament for the manner



8 For further particulars on this case of Earl Howe in Mir. Parl.
head, see vol. 2, c. on the Cabinet . 1831, p. 3127. Case of Sir S. Robin-
Council, son, Hans. D. v. 205, p. 1324. Case

f Grey, Parl. Govt. new ed. p. 300. of Surgeon-Major Tufuell, L. T. Rep.

Case of Sir Baldwin Walker, N.S. v. 34, p. 838. As regards officers

Hans. D. v. 161, pp. 1631-1641 ; v. in the navy, army, or militia, see

162, pp. 235-247. ante, p. 530.

h Chitty on Prerog. 82. See the



630



THE ROYAL PREROGATIVE



in which affairs are conducted.' 1 But such dismissals
should take place without cause assigned. If a reason
be given, it must be for an offence known to the law,
and for which there has been a lawful trial and convic-
tion^ Moreover, as respects those offices which are
held ' during good behaviour,' a tenure which has been
applied by Acts of Parliament to the judges (whether
their jurisdiction be local or general), the comptroller
and auditor-general, the assistant comptroller, the clerk
of the Parliaments, and the clerk and clerk's assistants
of the House of Commons, and various other function-
aries, whose position is one that makes it desirable that
they should be independent of the crown, holding their
offices for life, the incumbents thereof are only remov-
able (except in the case of certain officers of inferior
grade) by legal process, or upon addresses from one or
both of the Houses of Parliament, as the case may
be.*

But while every government must necessarily possess
the abstract right of dismissing any of its servants who
may hold their offices ' during pleasure,' whenever they
consider that such a step is required by the exigencies
of the public service, it has nevertheless been recog-
nised as a rule that persons holding non-political offices
under the crown should only be dismissed for incom-
petence or misconduct. 1 Dismissals on other grounds
are highly objectionable and inexpedient ; more espe-
cially if they spring from political considerations.
Doubtless, an active interference in politics, on the part



1 Grey, Parl. Govt. new ed. p. 326.
It is an invariable rule that no man
dismissed from one public dept. shall
be admitted to another. Hans. D. v.
227, p. 560.

J Law Mag. v. 2 (1856), p. 180.

k Broom, Const. Law, pp. 525,
791 . As to clerks of peace, who hold
oHice quamdiu hcne gessennt, Hans.
1). v. 17:3, p. 708; 27 & 28 Viet. c.



65. For legal effect of this tenure,
see Hans. D. v. 180, pp. 295, 304 ;
and post, \. 2. For list of offices of
courts of law in Great Britain and
Ireland which are held for li f e, see
Com. Pap. 1874, v. 24, p. 580.

1 Grey, Parl. Govt. p. 287. Mr.
Gladstone, Hans. D. v. 205, p. 1324 ;
and 3rd llep. Com 8 . Civ. Serv. Ex-
pend. Com. Pap. 1873, v. 7, p. 649.



IN KEGARD TO OFFICES AND PUBLIC OFFICERS. 631

of a non-political office-holder, would be a case of
'misconduct' sufficient to justify his dismissal. It is a
well-understood rule of constitutional government, that
all such functionaries ' should abstain from taking an
active part in political contests,' observing a strict neu-
trality therein. If a contrary practice prevailed, it
would inevitably follow that the opposite party, on
succeeding to power, would retaliate on those who had
assisted to uphold a rival ministry ; and thus a repe-
tition of vindictive and extensive changes amongst
government employes would occur, that would prevent
the growth of experience in office, and destroy the
efficiency of the public service.

In August 1866, the Lord Chief Justice of England, Sir Alex-
ander Cockburn, dismissed, or rather declined to reappoint, as usual, Case of

Mr. Edmund Beales, as revising barrister for the county of Middle- r^ r<

, TIT i. J->eales.

sex, on account of his having taken ' a very active and leading part

in a political agitation of no ordinary character,' having for its object
the endeavour to bring about a radical reform of Parliament. Re-
vising barristers are annual appointments, but it is customary to
nominate the same person year by year, unless for some special
reason ; so that declining to reappoint, in the present instance, was
equivalent to dismissal. The chief justice conveyed his sentiments
to Mr. Beales on this occasion, in an explanatory letter, wherein he
stated that he was ' very far from thinking that to entertain or to
express decided political opinions ought to be considered as disqua-
lifying a member of the bar from holding office as a revising barrister.
In making these appointments,' his lordship added, ' I have looked
only to the fitness of the candidates, and have never stopped to
enquire what were their political views. But, on the other hand, I
must say I do not think it desirable that a gentleman holding what,
in the view of many persons, would be deemed extreme opinions, and
occupying a prominent position in the political warfare of the day
whether on the one side or the other should be appointed to decide
judicially on the claims of persons to vote in the election of members
of Parliament.' Mr. Beales remonstrated against his removal, as
being, in his opinion, uncalled for and unjustifiable, but acknowledged
the kindly and friendly spirit in which his lordship had acted towards
him. m



m See correspond, in Jurist, v. 12, government in 1841, upon complaint
pt. 2, p. 346. See action taken by of clerks of justices of peace in



632 THE ROYAL PREROGATIVE

In 1869, Lord Chancellor Hatherley appointed Mr. Beales a
county-court judge. His conduct in that capacity gave general satis-
faction. 11

All public employes, whatever may be their private
convictions on political questions, are bound to discharge
their duties towards their official superiors for the time
being honestly and faithfully, affording to them all the
assistance in their power. But this assistance is neces-
sarily limited to the sphere of official obligation, and
does not require the surrender of private opinions, or
justify an intermeddling, on behalf of their employers, in
political strife. While, on the one hand, the practice
of depriving persons of subordinate offices simply on
account of their political views is destructive of all
efficient administration as the example of the American
Eepublic has strikingly shown on the other hand, it is
manifestly unreasonable that any public servant should
be permitted to continue in active opposition to the
existing government.

Any connection of public officers with the press,
which should lead to the improper use of official infor-
mation, or which would disturb the confidential rela-
tions which ought to subsist between members of the
civil service and their chiefs, is strictly prohibited. 1 *

Even the mere exercise of the political franchise by a subordinate
servant of the crown, though not prohibited, may be considered, as a
general rule, to be inexpedient. <* All persons engaged in the manage-
ment or collection of the public revenue were, by statutes passed in
the last century, expressly disqualified from voting at parliamentary
elections. So strictly was this enforced that country postmasters in

Scotland, acting as ' political agents.' p. 363 ; Hans. D. v. 171, p. 722,

Mir. Parj. 1841, p. 2216. Also correspondence between col.

" Hans. D. v. 209, p. 440. sec. and Gov. of New Brunswick

Desp. of col. secretaries to respecting dismissals from office for

Lieut.-Qov. of N. Scotia in 1848 and political reasons, New Brims. Ass y .

1860 in respect to control and dis- Jour. 1862, pp. 192-196.

missal of public officers, Toronto P Hans. D. v. 226, pp. 912, 915.

Globe, 22 Sept. 1860. Desp. to Grey, Parl. Govt. new ed. p. 236.

Gov. of Jamaica prohibiting public Hans. D. v. 189, p. 747; v. 194, p.

oHicers from writing offensive letters 1598.

iu the press, Com. Pap. 1860, v. 45,



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 633

receipt of but 4?. a year from the state were disfranchised. And by
later enactments, all persons connected with the police or consta-
bulary force, in town or country, were and still continue to be pro-
hibited from exercising the elective franchise. 1 " With this excep-
tion, however, no one is forbidden to vote by reason of his holding
an office under the crown, or because he may be in receipt of a fixed
income from the public revenue. 8 But motions to insert clauses in
the Reform Bill of 1867 to restore the franchise to revenue officers
and to the police force were negatived.* Nevertheless the tendency
of recent departmental regulations has been to secure a greater de-
gree of independence than formerly to those public servants who are
permitted to exercise the political franchise. Thus Mr. Ferrand, a
political opponent of the government, was elected a member for the
borough of Devonport, in February 1863, against one of the lords
of the Admiralty, although the constituency comprises a large num-
ber of employes in the Admiralty dockyards, whose votes turned the
scale in favour of Mr. Ferrand. u At the general election in 1865,
Devonport returned two Opposition members; but, upon petition,
they were both unseated for bribery practices. 7 The royal commis-
sion on dockyards, in 1860, recommended the disfranchising the dock-
yards, but this was not approved of by the government^ However,
the Reform Bill introduced by Mr. Gladstone in 1866 contained a
clause for the disfranchisement of the dockyard labourers ; avowedly
in order to protect members from the undue influence on the part of
constituents who are dependent upon government for their daily
wages. x Mr. Gladstone's Bill did not pass, but, in 1867, it was
stated by a member for a dockyard town that, as the result of an
improved departmental system, ' government influence in the dock-
yards was of no value now to any candidate.' y The government
now give a half -holiday to dockyard voters to enable them to exercise
the franchise at their own discretion. 2 It has been estimated that
the number of dockyard voters, in the several boroughs of Chatham,
Devonport, Greenwich, Portsmouth, and Pembroke, who would have
been disfranchised had this Bill become law was 3,655. a

It is not easy to define the extent of 'misconduct' Aiiinter-
of this description which should properly subject a f ^J^" 1
permanent officer of the crown to dismissal. During a objection-

3)016*

r Rogers, Elections, ed. 1885, pp. w Ib. v. 171, p. 670.
122, 123. * Ib. v. 181, p. 1876; v. 182, pp.

* Hans. D. v. 169, p. 524 ; v. 188, 68, 72, 1177 ; and see Ib. v. 193.
p. 1035. p. 1081.

* Ib. v. 188, pp. 1032-1036, 1202. Ib. v. 186, p. 1372.
u Ib. v. 169, p. 784. z Ib. v. 221, p. 1035.

* Ib. v. 183, p. 643. Com. Pap. 1866, v. 57, p. 43.



634



THE ROYAL PREROGATIVE



period of great political excitement the government
may be constrained to act with more severity towards
public servants who may take an active part in politics,
than at ordinary times.

For example, in 1819, when party feelings ran very high, Earl
Fitzwilliam, an amiable and loyal nobleman, was summarily dis-
missed from his office of lord-lieutenant of the West Riding of
Yorkshire, because he had joined in calling a meeting of freeholders
to consider of petitioning the king, and the two Houses of Parlia-
ment, upon the existing state of public affairs, in terms supposed to
reflect upon an answer recently given by the Prince Regent to an
address from the City of London. b The ministry, being interrogated
in Parliament in regard to this dismissal, justified it on the ground
that ' it was essential to the due administration of public affairs, and
to the dignity of the crown, that none of its servants should hold
opinions of it derogatory to its honour and character.' c

In 1868, however, a Bill introduced into the House of Com-
mons by a private member, to permit revenue officers to exercise
the franchise, was allowed to become law, d notwithstanding reports
made to the Treasury by the commissioners of Customs and Inland
Revenue that the measure was highly objectionable, and must
inevitably lead to mischievous results. 6 But an attempt made in
1869 to remove the remaining restrictions which prevent customs
officers from taking any active part, and officers in the Post Office
from voting at elections, was opposed by ministers, on the ground
that those concerned in collecting the revenue occupy a very different
position from other public officers, and that if such persons were
permitted ' to mix themselves up actively in political life, the
neutral position which they now occupy between the two parties in
the state would be destroyed.' The Bill was accordingly rejected/
In 1870, a motion, for a committee of enquiry into the extent of
these disabilities was proposed, and after a brief debate with-
drawn.s But in 1874 an Act was passed to abolish all existing
penalties against the interference of revenue officers, &c., at elections ;
leaving it to the discretion of the executive government to issue any
order whatever with regard to revenue and customs officers taking
part in elections. 11 The commissioners of Customs and Inland
Revenue, however, again protested against this Bill. 1



b Campbell's Chanc. v. 7, p. 335.
May, (Joust. Hist. v. 2, p. 107.

c Parl. 1). v. 41, p. 102.

d Hans. D. v. 192, p. 1533; v.
193, pp. 389-410, 1078; 31 & 32
Met. c. 73; 33 Viet. c. 11.

e Com. Pap. 1867-8, v. 50, p. 409.



f Hans. D. v. 194, pp. 1573-1599.

* Ib. v. 199, p. C98 ; also Ib. v.
210, p. 886.

11 Ib. v. 219, p. 797; 37 & 38
Viet. c. 22.

1 Com. Pap. 1874, v. 53, p. 335.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 635

It has been suggested that the relations between
the subordinate class of public functionaries and the
executive government should be regulated by statute,
so as to prevent a possible abuse of power on the part
of the responsible advisers of the crown towards their Exercise
subordinates in office. But it has been well remarked pow er of
by Lord Grey, that ' it would be impossible to limit the dlsmissal -
power of dismissal to cases in which misconduct could
be proved before a court of law, without incurring the
risk of having the executive government paralysed by
the passive resistance of persons holding these situa-
tions, and by the obstructions they would be able to
throw in the way of ministers they wished to oppose.
Law would be too clumsy an instrument for regulating
the conduct of the ministers of the crown and the
permanent civil servants of the state in their relations
to each other. This is now far more effectually and
far more safely accomplished by the power of public
opinion. So great is the authority of public opinion,
that no minister now ever thinks of dismissing a public
servant from those offices which are regarded as per-
manent, unless for gross misconduct ; but at the same
time he has the power (and public opinion would sup-
port him in using it) of dismissing such a servant for
misconduct, which it might be impossible for any law
to define beforehand, and of which there might be no
legal evidence, though there was a moral certainty.' j
Lord Grey proceeds to point out that active opposition
to their political chiefs for the time being, or attempts
to embarrass them either by passive resistance or by
putting difficulties in the way of their administration of
office, are just those kinds of misconduct which would
be most dangerous, and yet most difficult to suppress
or prevent by legal enactment. k ' The knowledge that

J Grey, Parl. Govt. new ed. pp. L. April 18, 1864, on the Educa-

326, 827. tion Coin, and the vote of the H.

k Ib. p. 327. See speeches of of C.
Earls Grauville and Grey, iu H. of



636 THE ROYAL PREEOGATIVE

there is no legal restriction on the power of dismissal
to prevent a minister from dealing with such a case as
it would deserve, has probably been the principal
reason why such cases do not arise ; and, by preventing
the possibility of a struggle between a government and
its servants, has kept up the good feeling which has
hitherto existed between them.' l

By a Treasury minute of March 27, 1849, the prin-
ciple has been laid down that the public are entitled to
the whole of the time of the civil servants of the
crown, and that government employes should not be
allowed to accept situations as directors of companies
Work in- requiring their attendance elsewhere during office
withoffice nours > or otherwise to engage in pursuits which would
hours interfere with the proper discharge of their official
duties. But so long as civil servants discharge the



service duties of their departments satisfactorily, the govern-
ment are disposed to refrain from interference with
them in endeavours to improve their pecuniary circum-
stances. 11 On April 1878 the rule was further defined
in respect to local offices, members of school boards,
&c., and the opinion was strongly expressed that such
extra employment is generally prejudicial to the public
service, because no one can serve two masters. Such
offices, if of profit, are specially objectionable. If not
of profit, the chief of each department must consider
and ' decide on the compatibility of functions in respect
of character and time.'

Whenever it is deemed advisable, in furtherance of



1 Grey, Parl. Qovt. new ed. p. 327. professional men, Ib. v. 225, p. 904.

See discussions in both Houses in In regard to persons in the army

1872 as to alleged discourtesies in and navy taking part in religious

treatment of Dr. Hooker, direc. of services when off duty, see Ib. v.

Kew Gardens, by his official chief, 213, p. 836.

the first comn. of works, Hans. D. For example, by being directors

v. 213, pp. 2, 709. of Co-operative Supply Associations,

m Chanc. of excheq Hans. D. v. Ib. v. 221, p, 870 ; v. 225, p. Oil.
212, p. 954 ; also Ib. v. 219, p. 329. Coin, Pap. 1882, v, 52, p. 639.
Jiut this rule would not apply to



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 637

proposed reforms or retrenchments in the public ser- Pensions
vice, to dispense with the services of any particular class tiring ai-
of public employes, it has always been customary to lowances -
respect the claims of existing incumbents, by allotting
to them suitable pensions or retiring allowances. It
was well said by Edmund Burke, whose patient labours
in the cause of national retrenchment were so eminently
successful, that it was neither wise, expedient, nor just to
interfere retrospectively with places or pensions ; that
reform ought to be prospective ; that the duration of
the life of a nation was not to be compared with the short
duration of the life of an individual ; that an individual
hardship, and especially an injustice, ought not to be
committed for the sake of arriving a few years sooner
at the object Parliament had in view, namely, economi-
cal reform. p ' The reason why public retrenchment in
this country has been satisfactory to the nation is this,
that no country, no Parliament, in pursuing the work
of retrenchment, ever has been so studiously observant
of the claims of justice to every individual. And
therefore the work of retrenchment must be a well-
considered and a gradual work.' q It is to the credit
of the imperial government that they have invariably
acted upon this magnanimous principle. Authority
has been given to the Treasury, by a general Act
of Parliament, to make suitable compensation to all
persons whose offices may be abolished ; r and in
cases which do not come within the purview of this
Act, special provision is made by Parliament for the
purpose. 8

When the new Divorce and Probate Court was established, in
1857, provision was made to compensate the proctors who had



P Mir. Parl. 1836, p. 1047. case of Sir R. Bromley in 1865,

q Mr. Gladstone's speech to elec- wherein the govt. and the H. of C.

tors of Greenwich, 21 Dec. 1868. dealt as liberally as possible with a

r 4 & 5 Will. IV. c 24 ; Com. valued public servant upon his re-
Pap. 1852-3, v. 57, p. 717. tirement, Hans. D. v. 180, pp. 499-

Hans. D. v. 207, p. 308. See 508.



638 THE EOYAL PEEROGATIVE

practised in the old Ecclesiastical and Prerogative Courts, which were
then abolished. This compensation, including retiring allowances
to judges and other officers of said courts, amounted to upwards of
116,000^. per annum.*

Formerly the lord chancellor was at liberty to
increase salaries of clerks in the Court of Chancery,
within certain limits, at his own discretion, but in 1869
an Act was passed providing that the Treasury should
be a party to all alterations of salary in connection
with the court, and in 1871 the committee on public
accounts reported that it was desirable that the Trea-
sury sanction should be obtained to all alterations of
salaries and office expenses of the courts of law. u
He orts ^ n -^ e k- -^' 1873, a select committee of the House

of civil of Commons was appointed to enquire into any and
Ex-pen- what reductions could be effected in the expenditure
diture f or c [ v {\ services (other than the national debt and the
mittee. civil list), whether charged on the Consolidated Fund
or defrayed from votes of Parliament, with special
reference to those branches thereof which are not under
the direct or effectual control of the Treasury. This
committee was presided over by Mr. Childers. It
made three reports, and recommended that the enquiry
should be continued in the next session. The new
ministry, however, declined to propose a resumption of
it/ But they decided to appoint a commission to en-
quire into various matters affecting the civil service.

The first report (March 31) recommended that,
inasmuch as the mastership of the Eolls was about to
be vacated, any new appointment in that department
should be made subject to the express condition that
the office may be abolished or modified, or its salary
reduced by the Treasury, without compensation, and
that the Treasury should at once proceed to revise
this department. In their second report the committee

Hans. D. v. 154, p. 1095. Com. u Hans. D. v. 207, p. 1G9.
Pap, 1801, v. 61, p. 495. T Ib. v. 218, p. 628.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 639

recommended that this principle should be applied to civil
all salaried offices in legal departments within the expen-
scope of this enquiry. w Whereupon a Treasury minute diture -
was issued, authorising a circular to be sent to the
judges, &c., in conformity therewith. x

The second report (June 12) dealt further with the
administrative departments of the courts of justice in
the United Kingdom, the expenditure for which amounts
to 1,746,000/. per annum. While, as a rule, the
Treasury claims and exercises a right to judge every
measure increasing, or tending to increase, the civil
expenditure, the functions of that department are not
uniform in respect of all branches of the civil service.
The power of the Treasury in dealing with the legal
departments is to a great extent limited by statute,
and is ineffectual to prevent excessive and ill- regulated
expenditure. The committee therefore recommended
(as preferable to enquiry by themselves) that these
establishments should undergo a searching investiga-
tion by a competent commission of enquiry to be ap-
pointed by the crown. This enquiry to embrace the
numbers, salaries, superannuations, mode of appoint-
ment, and promotion for each establishment, and should
recommend who ought to be responsible to Parliament
for their organisation, and what should be their relation
to the Treasury ; and in view of the probable changes
under the Judicature Bill now pending (and since
become law), should report what rules ought to be
laid down as to compensation on abolition of judicial
or other offices therein, with a view to general legisla-
tion on the subject. 7

This commission of enquiry was appointed by the crown in Report of
October 1873. On December 8 they presented a first report, on



Service
Expen-



w Com. Pap. 1873, v. 7, pp. 387, * For steps taken by govt. to carry

391. out this report, see Hans. D. v. 216. ms

Ib. 1875, v. 61, p. 383. See p. 1856; v. 217, p. 494.
Hans. D. v. 225, p. 1001.



640 THE ROYAL PREROGATIVE

the subject of the proper compensation to be allowed on abolition
of judicial offices, or of subordinate offices in courts of justice, and
on the possibility of utilising the services of persons in receipt of
such compensation. 2 Certain subordinate offices connected with
the great seal were abolished, and new provision made for the
duties and salary of the clerk of the crown in Chancery in 1874, by



Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 60 of 85)