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way passenger duty ought to be reduced at an early date, with a view passenger
to its ultimate repeal. In amendment, Mr. Rodwell moved, that a
select committee be appointed to enquire into the operation of this
duty, and especially as to its effect upon the working of cheap trains.
The government accepted this amendment, and it was agreed to ac-
cordingly. The committee reported, on June 23, that it was unde-
sirable to maintain this tax any longer than is necessary for fiscal
purposes. On April 17, 1877, Mr. Knatchbull-Hugessen, who was
a member of this committee, moved, seconded by Mr. Spinks, that,
pending the question of the abolition of this duty, the other recom-
mendations of the committee should receive the early attention of
government. To this an amendment was moved, to deprecate the
abolition of the tax. After a long debate the chancellor of the ex-
chequer stated that he objected to both motions, and to the House
agreeing to a resolution, which points to the abolition of a tax, where
there are avowedly not the means for giving effect to that resolution
at once. Finally the motion and amendment were both with-
drawn.

' Hans. D. v. 178, pp. 3120-1124. a resolution in favour of a reduction
f Ib. v. 183, pp. 1199-1202, 1407. of the duty on fire insurances to six-
And see Ib. March 19 and May 16, pence per cent. But as the budget
1867, when the other unsuccessful at- was to be presented within forty-
tempts were made to obtain a further eight hours, Mr. Gladstone (prime
reduction of this duty. On April 6, minister) moved that the debate
1869, Mr. Sheridan again proposed thereon be adjourned for a week,



720



THE ROYAL PREROGATIVE



Prece- On June 24, 1864, Mr. Morritt moved, as an amendment upon

going into supply, to resolve that in case of any modification of the

Malt Tax. indirect taxation of this country, the excise on malt requires consi-
deration. The motion was opposed by the chancellor of the exche-
quer upon similar grounds of objection to those made use of in regard
to former motions of this description, and was negatived on division.
On March 7, 1865, a similar resolution was proposed by Sir Fitzroy
Kelly. After an amendment had been proposed thereto and with-
drawn, the previous question was put and negatived. But on propos-
ing his budget on April 27 following, the chancellor of the exchequer
intimated that he was prepared to offer a partial relief to the oppo-
nents of this duty by giving the maltster the option of having the duty
charged by weight instead of by measure.^ This trifling concession
was of no avail to satisfy the opponents of the malt tax. Accord-
ingly on April 17, 1866, Sir F. Kelly again submitted a resolution
in favour of the speedy reduction and ultimate repeal of this duty.
After a long debate, the motion was negatived on division.

On May 14, 1867, with the consent of the government, the House
of Commons appointed a select committee ' to enquire into the opera-
tion of the malt tax.' Being unable to complete their enquiry, the
committee, on July 25, reported the evidence already taken, and
recommended that they should be re-appointed in the next session.
This was done, and on July 13, 1868, the committee reported in
favour of a repeal of the malt tax, provided the loss to the revenue
could be made up in some other way. h Whereupon, 011 March 1870,
a proposition for the substitution of a tax on beer in lieu of the
malt tax was submitted to the House. After debate, the chancellor
of the exchequer promised it should have his careful consideration
and the motion was withdrawn.

Carriers' n March 14, 1868, Mr. Lawrence moved, that the House should

duty. go into committee to consider of the Acts relating to post horse and

carriage licences, &c. duties, with a view to revise, reduce, and
equalise the taxes on locomotion. After a short debate, the motion
was withdrawn, at the request of the chancellor of the exchequer. 1
The motion was again made, on March 16, 1869, with a similar re-
sult. But in the budget of the same session provision was made for
reducing and equalising all taxes on locomotion. k

Male On July 15, 1870, a private member called the attention of the

servants' House to a rigid construction placed by the excise office on an Act
duty.



which was carried. But two days
after, the chancellor of the exchequer,
in making his financial statement,
announced the intention of ministers
to abolish the tax altogether. Hans.
D. v. 11)5, pp. 305, 391.



Hans. I), v. 178, p. 1120; Act
28 & 29 Viet. c. 00.

h Com. Pap. 1807-08. v. 0, p. 235.
1 Ilaus. U. v. 191, pp. 187-190.
J Ib. v. 104, p. 1523.
k Ib. v. 195, p. 393.



IN REGARD TO TAXATION. 721

passed in the previous session of Parliament imposing an assessed
duty on male servants. 1 Failing to obtain a remedy for his grievance,
next session he brought in a Bill to amend the Customs and Inland
Revenue Act of 1869, in this particular. This Bill was opposed by
ministers, on the ground that it would set a most inconvenient pre-
cedent, inasmuch as all enactments of this kind should be embodied
in the same measure. Upon the introduction of the annual Bill to
amend the customs and inland revenue law, a clause to the effect of
this Bill might be moved in committee. Whereupon the second
reading of the Bill was deferred. 111

On April 23, 1874, in committee of ways and means, on a formal
motion, ' that it is expedient to amend the laws relating to the inland
revenue,' a private member moved, that it is expedient to repeal the
Gun Licence Act, 1870, which was negatived on division.



1 Hans. D. v. 203, p. 349. Ib. v. 205, pp. 403, 1689.



VOL. I. 3 A



722 THE ROYAL PREROGATIVE.



CHAPTEE XVII.

THE RIGHTS AND PRIVILEGES OF PARLIAMENT, AND ESPE-
CIALLY OF THE HOUSE OF COMMONS, IN THE GRANT OF
MONEY FOR THE PUBLIC SERVICE.

Grant of FROM a very early period in the history of England
by P par e - S the principle has been established, that the right of
Hament. taxation, and the granting supplies for the public
service, belong exclusively to Parliament.

The old prerogative claim of the sovereign to levy
taxes on the subject at his own will and pleasure, was
first expressly restrained by the declaration, in Magna
Charta, that ' no scutage or aid shall be imposed in our
kingdom unless by the general council of our kingdom ; '
with certain exceptions peculiar to the person and
family of the king himself.

This concession lies at the foundation of our parlia-
mentary institutions, and especially of the House of
Commons as a distinct branch of the legislature. The
growth of the Commons in power and influence was
strikingly exemplified by the statute De tallagio non
concedendo, in the 25th Edward I., by which it was
declared, ' That no tallage or aid shall be taken or
levied without the good will and assent of the arch-
bishops, bishops, earls, barons, knights, burgesses, and
other freemen of the land.' a

Concurrently, however, with parliamentary taxation,
other imposts used to be levied by royal prerogative, 1 *



* Stubbs, Const. Hist. v. 2, pp. b See ante, p. 457 ; Cox, lust. pp.
142, 564. ' 600-603.



CONTROL OF PARLIAMENT OVEK SUPPLIES. 723

independently of the action of Parliament ; but none
of these survived the Eevolution of 1688. It was
guaranteed by the Bill of Eights that henceforth ' no
man be compelled to make any gift, loan, or bene-
volence, or tax, without common consent by Act of
Parliament.' And it was finally established by the Act
of Settlement, ' That levying money for or to the use of
the crown by pretence and prerogative, without grant
of Parliament, for longer time or in other manner than
the same is or shall be granted, is illegal.'

Since that memorable period the crown has been No SU P-

i -, ^ r\ f c plies to be

entirely dependent upon Parliament lor its revenues, usedun-
which are derived either from annual grants for specific ^f a s nted
public services, or from payments already secured and b / Par-
appropriated by Acts of Parliament, and which are
commonly known as charges upon the Consolidated
Fund.

On this principle while prize-money, obtained P rfz e
through the valour of the army and navy, is distributed
by the crown itself, by virtue of its prerogative d to
the captors ; any surplus remaining over after such
"distribution should be paid over to the Consolidated
Fund, and could not be appropriated to public uses,
without the authority of Parliament. 6

Any question as to the right of persons to participate in prize
money should be determined by the lords of the Treasury under
the guidance of the law officers of the crown. But in 1863, in the
case of the Banda and Kirvvee prize-money, the government under-
took to make no final arrangement in regard thereto until papers on
the subject had been communicated to the House of Commons, ' so
as to give that House the opportunity of intercepting the proposed
distribution, if it thought proper to do so.' f This case having excited
much controversy, a royal commission enquiry into the whole
subject of Army Prize was appointed in 1864, upon whose re-
commendation a royal warrant was afterwards issued, under which



c Broom, Const. Law, pp. 398-402. Ib. v. 61, p. 484; Com. Pap.

d Clode, Mil. Forces, v. 2, p. 292 ; 1842, v. 26, pp. 369-371.

Hans. D. v. 71, p. 352 ; v. 82, p. , f Hans. D. v. 172, pp. 250, 817.

682. 1475.

3 A 2



THE ROYAL PREROGATIVE.



Military

reserve

funds.



the Court of Admiralty took cognisance of the case, judgment was
rendered in 1866,s awarding to the proper claimants their rightful
share of this vast booty. h

And while the crown is not at liberty to invite or
receive gifts or loans of money for any public service
without the consent of Parliament, neither may any
person voluntarily lend money to the crown, or to any
department of stafe 1 "ior public purposes, without the
sanction of Parliament, under penalty of a misdemean-
our. 1 The charter of the Bank of England contains a
clause forbidding money transactions between the Bank
and the Treasury, that have not received express par-
liamentary authority. 3

A discussion arose in the House of Commons on April 28, 1862,
in reference to the Military Reserve Fund, a fund which since
1851 had accumulatecTTromTn^proceecTs of the sale of army com-
missions, and amounted to a very considerable sum. k This fund had
been appropriated, under the authority of the secretary of state for
war, to ' facilitate and remove the friction from the working of the
system of purchase,' and it was admitted that no fault could be
found with the practice. Nevertheless, grave constitutional objec-
tions were urged against the existence of a fund not voted by
Parliament, or subject to its control, but which was expended at
the discretion of government. The secretary for war acknowledged
tuat tnese' objections were well founded, and promised that the at-
tention of government should be directed to the question, with a
view to this fund being brought under parliamentary examination
and audit. 1 Since 1860, accounts of the application of this fund



12 Jurist N.S. p. 819.

h Law. Mag. v. 23, p. 66 ; Hans.
D. v. 188, p. 983: v. 194, p. 1462 ;
Com. Pap. 1868-69, v. 46. Ib. 1871,
v. 60. Ib. 1875, v. 156. Hans. D.
v. 231, p. 821 ; v. 201, pp. 1524-51 ;
v. 212, p. 1404.

1 See debates in the Commons on
Mr. Sheridan's' motion respecting
voluntary aids for public purposes
without the consent of Parliament,
Parl. Hist. v. 31, pp. 83, 97 ; and in
the Lords, Ib. p. 122. See Lord
Brougham's comments on this case,
Hans. D. v. 83, p. 37 ; Mr. Massey's
observations in his George III. v. 4,



p. 77 ; Clode, Mil. Forces, v. 1 , p. 101 ;
Com. Pap. 1868-9, v. 35, p. 963.

J Hans. D. v. 162, p. 887; and
see Report of the Comptroller of the
Exchequer, in Rep. Corn 6 , on Public
Moneys, Com. Pap. 1857, Sess. 2,
v. 9.

k The Commons Com e . on military
organisation, of 1860, first directed
the attention of the House to the
existence of this anomalous fund.
(Report, pp. xi. xii. ; Evid. pp. 471-
473.) And see Smith's Parl. Rememb.
1862, p. 79.

1 Hans. D. v. 166, p. 985 ; and see
v. 168, p. 736.



CONTROL OF PARLIAMENT OVER SUPPLIES. 725

have been periodically submitted to Parliament ; and to this extent
brought under the control of Parliament. A fund arising from
fines imposed on soldiers for drunkenness is distributed in con-
formity with the recommendations of a select committee of the
House of Commons in 1870. On May 14, 1867, a select committee
was appointed by the House to enquire into the origin of Military
Reserve Funds, the sources from which they are derived, and the
objects to which they are applied. On July 22, this committee re-
ported the evidence already taken, with a recommendation that they
might be reappointed next session, to complete the enquiry." It
was accordingly reappointed in 1868, and on May 22 reported an
opinion, that on constitutional grounds the Military Reserve Fund
should be wound up. The government promised to consider the
matter.

The constitutional principle of parliamentary control Loans,
is also applicable to advances or loans of public money,
to foreign powers, corporations, or private persons ; to Debts du
the remission of debts due to the crown by any such crown,
persons or powers ; and even to the sale of property Govern-
by one department of the state, and its purchase by
another department for public uses. p It equally applies
to the gift of public money, or public stores, in the
name or on behalf of the crown. q Public departments
are not now at liberty to give away stores without the
direct sanction of Parliament. The rule, that no public
property should be disposed of in kind, has been ' one
of the most difficult achievements of financial reform
during the last half century.' Before the establishment
of this rule the public never knew when anything was
given away, or what was the value of the gift. r But
by a Treasury minute, issued on May 13, 1871, pur-
suant to the First Eeport of the Committee of Public
Accounts in that year, every public department is now



m Hans. D. v. 214, p. 1393. expenditure.

" Com. Pap. 1867, v. 7, p. 713 ; Hans. D. v. 193, p. 1279. Olode,

Hans. D. v. 189, p. 334. Mil. Forces, v. 2, p. 445.

Com. Pap. 1867-8, v. 6. r Mr. Gladstone, on an address for

p The question of sales of public the grant of gun-metal to erect a

property between different public de- statue to Visct. Gough, Hans. D. v.

partments will be considered in post, 203, p. 779.
vol. ii., when treating of unauthorised



726



THE ROYAL PREKOGATIVE.



Advances
of public
money.



Prece-
dents.



Public
Works
Loan
Commis-
sioners.



required to notify the Treasury whenever it is proposed
to relinquish a claim due to the public, whether of cash
or stores.

Advances out of the public funds, for whatsoever
purpose, should ordinarily be made only by express
authority of Parliament. 3

In 1868 the select committee on the Lee River Conservancy
Bill recommended the Treasury to consider the expediency of
authorising the Public Works Loan Commissioners to advance to
the said conservancy board funds to pay off certain debts. 1

In April 1876, regulations approved by the Treasury were
issuad for carrying into effect the Public Works Loan Act, 1875.
They empowered the commissioners to elect a chairman and deputy-
chairman, prescribed the method of conducting business, and fixed
the quorum of the board at three. They also defined the powers of
the board and its relation to the Local Government Board."

In May 1876, the Public Works Loan Board presented their
first annual report, under the Act of 1875. It was prefaced by an
account of the origin of this department of the public service. It
originated in 1817, a time at which, after the close of the European
war, there was considerable difficulty in obtaining loans of capital
for the execution of many works of public utility and advantage,
and great numbers of the labouring classes were in want of employ-
ment. The proceedings of the department have been regulated by
various Acts of Parliament, the first of which (57 Geo. III. c. 34)
recites the benefits anticipated to result from the loans of public
money, not to exceed in all 1,750,000. authorised by the same.
This Act provided for the appointment of twenty-one commissioners
for the purposes of the Act in Great Britain, and fifteen commis-
sioners for its execution in Ireland. By subsequent statutes, further
sums were placed at the disposal of the commissioners for loans,
and their powers were extended and enlarged. These Acts are all
recited in this report, which gives full particulars of the operations
of the board from its first establishment. v

By the Act 39 & 40 Viet. c. 31, the sum of four million pounds



See Act 57 Geo. III. c. 34, ap-
pointing Public Works Loan Com-
missioners, and several Acts since
passed extending powers of that
board. Also Acts 29 & 30 Viet. c.
72 ; 30 Viet. c. 32.

* Com. Pap. 1867-8, v. 40, con-
cerning the remission of bad debts
owing to the Loan Fund ; see Rep.



Corn". Pub. Accts. Com. Pap. 1874,
v. 6, pp. 20, 143. Rep. Corn". Pub.
Works Loan Bill. Com. Pap. 1875,
v. 14, pp. 33, 69. For particulars
concerning the origin and operations
of this fund, see Hans. D. v. 222,
p. 222.

u Com. Pap. 1876, v. 42, p. 483.

T Ib. v. 21, p. 125.



CONTROL OP PARLIAMENT OVER SUPPLIES. 727

was granted, for the purpose of loans by the Public Works Loan rece-
Commissioners for the current year, and certain amendments were dents.
made to the Loan Act of 1875. A like amount was granted in
1877, by the Act 40 & 41 Viet. c. 19, which also authorised the
Public Works Loan Commissioners to compound a certain debt in
respect to a loan granted by them in 1867. By the Public Works
Loans Act, 1882, upwards of four millions were granted for loans in
the United Kingdom, and they were empowered to postpone a debt
due by a Scotch harbour. And by the Act 40 Viet. c. 2 (for the
preparation, issue, and payment of Treasury bills), a new form of
raising money is provided, which is specially adapted to facilitate
and economise loans for public works from the loan commissioners^

The Act of 57 Geo. III. c. 34, by which the commission was first
appointed, named the commissioners, twenty-one in number, and em-
powered them to fill up vacancies in their number, which they usually
did after communication with the chancellor of the exchequer. In
the next Act of Parliament relating to the commissioners which
happened to be passed, it was customary to insert the new names, in
order that they might be confirmed by Parliament, but meanwhile
the new commissioners were fully competent to act, and their
appointments were considered as permanent. All the vacancies,
however, have not been filled up. In 1875, there were only fifteen
commissioners, and of these not more than eight or nine were active
members of the board. In the consolidating and amending Act,
passed in 1875, 38 & 39 Viet. c. 89, the names of the commissioners,
sixteen in number, were all included, but the commissioners were
still empowered to fill up vacancies themselves for unexpired
terms of office.* But provision was made that the commissioners
should not hold office for a longer period than five years unless
otherwise directed by any Act of Parliament appointing a com-
missioner. The commissioners are unpaid, and have no patronage.?
The idea has been ' That the loans granted by the state should be
regulated by a body independent of political influence.' 15 This view
has been endorsed and strengthened by the amending Act of 1875.

At first the Public Works Loan Commissioners had a yearly sum
of 300,000^. appropriated to their requirements, in the grant of loans
to local works upon their own discretion. But about 1861 a change
was made in the policy of Parliament, and from that time various
Acts have been passed, each of which opened a special credit on
behalf of particular undertakings upon which the Public Works



w Hans. D. v. 232, p. 1583. See * Rep. Com e . Public Works Loans

also Public Works Loan (Ireland) Bill, Com. Pap. 1875, v. 14, pp. 3, 7,

Act, 1877, and article on Local Debts 27, 38.

and Government Loans in Ed. Rev. y Vide Report, p. 30.

v. 153, p. 548. * Ib. p. 66.



728



THE ROYAL PREROGATIVE.



Prece-
dents of
money
advances.



Loan Commissioners were at liberty to draw, without any annual
limit to such expenditure, e.g., the Harbour and Passing Tolls Act ;
Acts for Relief of Manufacturing Distress ; Loans on account of the
Cattle Disease ; of the Public Education Acts ; and of the Public
Health Acts.

The amounts which the commissioners can draw under these
Acts are very large, and have hitherto been indefinite. But it has
become necessary that the chancellor of the exchequer should know
beforehand the probable extent of such demands upon him for
pecuniary advances within the year. And he accordingly announced
his intention of adding to his ordinary yearly budget an annual
statement, or ' local budget,' for the purpose of enabling Parliament
to be informed each year of the progress of loan transactions, and of
determining what amount of money should be voted to supply loans
to be effected through the commission, and of providing for the
same by a separate Bill. a Old running loans which have hitherto
escaped the attention of Parliament are now to be abolished ; and
no loan is to be remitted or compounded without the authority of
Parliament. 13 The evidence appended to the afore-mentioned report
embodies much information upon the operations of the Public Works
Loan Commissioners.

By the Act 38 & 39 Viet. c. 58, the Treasury is empowered to
issue to the Public Works Loan Commissioners, out of the Consoli-
dated Fund, sums of money not exceeding in the whole three million
pounds sterling, for the purpose of any loans by the commissioners
which cannot be issued under Acts in force at the passing of this
Act. d

Previous to the Act of 1875, the Treasury had power by warrant
to reduce the terms on which loans might be made by the com-
missioners. But by that Act Parliament divested the Treasury of
this power, so that full responsibility might rest on the com-
missioners, subject only to the control and revision of Parlia-
ment. 6

On July 4, 1876, on going into committee upon a Bill to place
four million pounds at the disposal of the commissioners for loans to
be granted by them to local authorities during the current financial
year, the president of the Local Government Board made the



Vide Report, Com. Pap. 1875, v.
14, pp. 38, 60, 62, 66 ; Hans. D. v.
233, p. 1687.



Public Works Loan Bill, Ib. v. 229,
p. 669.
c Com. Pap. 1875, v. 14, p. 9, &c. ;



b Ch. of Exch. in Budget Speech, Ed. Rev. v. 153, p. 548, &c.



1876, on loan transactions for Pub.
Works. Hans. D. v. 228, p. 1111.



d 38 & 39 Viet. cc. 83 & 95.
Hans. D. v. 230, pp. 872, 975,



A detailed statement, or ' Local 981 ; v. 234, pp. 1169, 1291.
Budget,' promised on bringing in a



CONTROL OF PARLIAMENT OVER SUPPLIES. 729

promised financial statement, showing the indebtedness of the local Money

authorities and their current expenditure. The total indebtedness of advances.

local authorities in England and Wales was placed at 92,000,000?.,

the great bulk of which was borrowed, not from the Public Works

Loan Commissioners, but from private bankers and capitalists f On

April 23, 1877, the ' Local Budget ' was again presented by the

same officer, asking the same grant of four millions.

The Local Government Board & are required (by 36 of the
Public Works Loans Act of 1875) to satisfy themselves that every
loan advanced by the Public Works Loan Commissioners on the
security of any rate has been duly applied for the purpose for which
it was advanced. Other new duties are imposed on this board by
the Local Loans Act of 1875, h which came into force on the 1st of
January, 1876. This Act enables every local authority in England
and Wales to issue debentures and annuity certificates, and in some
cases debenture stock, for the purpose of raising any new loan,
which they are otherwise authorised to borrow ; or for the purpose
of discharging any existing loan, lawfully contracted.

By the 161st section of the Public Health Act, 1875, the Local
Government Board are empowered to issue provisional orders, in
certain cases, authorising the establishment by urban authorities of
undertakings under the Gas and Water Facilities Act, 1870. The
advantages attending the Provisional Order System as compared



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