offence. So long as a minister of state retained the favour of his sovereign, it was difficult, if not impossible, to convict him of misconduct, or make him amenable for misdeeds agreed upon in secret, and which were perhaps commanded by the king himself; so that opposition to a suspected favourite commonly took the shape of intrigues to displace him from power, or gave rise to open resistance to the crown itself. the crown. As a pledge and security for the rightful exercise Responsibility of of every act of royal authority, it is required by the ministers constitution that the ministers of state for the time for acts of being shall be held responsible to Parliament and to the law of the land for all public acts of the crown. This responsibility, moreover, is not merely for affairs of state which have been transacted by ministers in the name and on the behalf of the crown, or by the king himself upon the advice of ministers, but it extends to measures that might possibly be known to have emanated directly from the sovereign. If, then, the sovereign command an unlawful act to be done, the offence of the instrument is not thereby indemnified; for though the king is not personally subject to the coercive power of the law, yet in many cases his commands are under its directive power, which makes the act itself invalid if it be unlawful, and so renders the instrument of its execution obnoxious to punishment." And if the rights of any subject should have been infringed by a wrongful act committed by command of the sovereign, the ordinary courts of justice will grant a remedy. A king, however limited his powers may be, is in all modern constitutions personally irresponsible. His command is no justification of any illegal act done by another, but no constitutional monarchy seems to supply any ordinary means of punishing an illegal act done by the king's own hands.w " 1 Hale, pp. 43, 44. E. A. Freeman in Nat. Rev. 1864, p. 6. See Cox, Eng. Const. pp. 30, 408-416. Hearn, Govt. of Eng. pp. Public audience must be through an official. The personal command of the king is no excuse for a wrong administration of power. Lord Danby was impeached for a letter which contained a postscript in the king's own hand, declaring that it had been written by his order. And although the king is the fountain of justice, a commitment by his own direction has been held to be void, because there was no minister responsible for it.* In a constitutional point of view, so universal is the operation of this rule, that there is not a moment in the king's life, from his accession to his demise, during which there is not some one responsible to Parliament for his public conduct; and there can be no exercise of the crown's authority for which it must not find some minister willing to make himself responsible.' 'The king, being a body politique, cannot command but by matter of record.' Therefore, whenever the royal sign-manual is used, it is necessary that it should be countersigned by a responsible minister, for the purpose of rendering it constitutionally valid and authoritative." 6 If a peer of the realm desires to avail himself of his privilege of peerage to solicit an audience of the sovereign," to make any representations on public affairs, it is necessary that he should apply for an interview through an officer of the royal household, or through the secretary of state for the Home Department. But * Russell, Eng, Const. p. 159. See Broom, Const. Law, pp. 244, 246, 615. Pollock in Fort. Rev. N.S. v. 30, p. 486. * y See Lds. Erskine and Holland's speeches, in Hans. D. v. 9, pp. 363, 414; Mr. Adam's speech, 1b. v. 16, p. 8** *; Sir H. Nicolas, Pro. Privy Coun. v. 6, p. 200, and Grey's Parl. Govt. new ed. p. 326 n. The resolution of Queen Victoria to bestow the hand of the Princess Louise upon a British subject was not taken without the advice of responsible ministers.' Mr. Gladstone, Hans. D. v. 204, pp. 173, 370. the exercise of this privilege of the peerage should be limited by prudential considerations. One of these ought to be the utility of the course to be pursued; and the propriety of avoiding anything calculated to embarrass the relations between the sovereign and his ministers. And no peer should take advantage of an audience with the sovereign to become the medium for presenting petitions or addresses from the people. Such documents can only be suitably presented through a secretary of state, or at a levée or public audience, in the presence of the king's ministers. A secretary of state is the constitutional channel for conveying the royal reply to such addresses. All letters or reports on Communi public affairs intended for the government of Great cates with Britain must be addressed to the king's minister, not to powers, the sovereign personally; that is to say, to the secretary through of state to whose department their subject-matter would ministers. probably belong. When Napoleon Bonaparte was First Consul of France, he disregarded this constitutional rule, and addressed a letter containing proposals of peace between France and England to the king himself; but it was acknowledged and answered by the foreign secretary. If it were fitting that the sovereign should receive such a communication without the interposition of a minister, there would be no reason why he should not deal with it on his own authority.f foreign &c. Official re ports to be made In 1810, a violation of this rule was made the subject of parliamentary enquiry. Lord Chatham, being at the time a privy councillor and a cabinet minister, accepted the post of commander of the expedition to the Scheldt. On his return to England, he minister. presented to the king, at a private interview, a narrative, drawn up See Welln. Desp. 3rd S. v. 7, p. 424; v. 8, p. 168. 190. Ld. John Russell, 1b. v. 130, p. 'Canning and his Times, by Stapleton, p. 47. See also the case of the autograph letter addressed by the Emperors of Austria and Russia, and the King of Prussia, to the Prince Regent, in 1815. Yonge, Life of Ld. Liverpool, v. 2, pp. 226-234. In 1847 the King of Prussia wrote a private letter to Queen Victoria re- through a by himself, of the conduct of the expedition, in which he criminated one of his colleagues in the ministry, and brought serious charges against an admiral who had been employed conjointly with himself in the expedition. He did this, unknown to any other cabinet minister, and requested the king not to communicate the paper to anyone, at least for a time. The document remained in the king's possession for nearly a month, when Lord Chatham asked to have it returned to him, in order that he might make some alterations in it. Upon receipt of the paper, Lord Chatham expunged a paragraph therein, and returned it to his Majesty. When the narrative again reached his hands, the king directed that it should be forwarded to the secretary of state, for the purpose of making it an official paper. It was afterwards transmitted to the House of Commons, when its peculiar history transpired. The House called for the attendance of Lord Chatham at the bar, and questioned him as to whether he had, on any other occasion, made such a communication to the king; but he refused to answer, and, being a peer, could not be compelled to do so. Whereupon, on February 23, on motion of Mr. Whitbread, the House agreed to an address to the king (on division, against ministers), praying for copies of all reports or papers at any time submitted to his Majesty by Lord Chatham relative to the expedition to the Scheldt. During the debate Lord Chatham's conduct was strongly reprobated by Mr. Canning and other constitutional authorities, who contended that whilst his lordship, as a member of the cabinet, was equally responsible with the rest of his colleagues for the wisdom or policy of the said expedition, yet that in his capacity of commander he was responsible to the king, through the secretary of state; and that he was bound to present his report through the regular constitutional channel— namely, the secretary of state, or the commander-in-chief of the army. His position was compared with that of a minister at a foreign court, who, on being appointed to office under the royal sign-manual, is always formally instructed to conform to the orders and correspond with the secretary of state through whom he has received his appointment. Lord Chatham's instructions had been similarly prepared, and there was nothing in his peculiar position of privy councillor and cabinet minister to justify his passing by the secretary of state, in communicating with his Majesty upon a public matter. In reply to their address, the king made known to the House of Commons the circumstances under which he had received Lord Chatham's communication, and stated that no other reports or papers concerning the Scheldt expedition had been presented to him by that nobleman. On March 2, Mr. Whitbread submitted to the i Parl. D. v. 15, p. 482. h Ib. p. 581. Tb. P. 602. House resolutions of censure upon Lord Chatham for his unconstitutional conduct. The previous question was proposed thereupon, on the part of the administration, and negatived. But an amendment, proposed by Mr. Canning, in modified terms of censure, was accepted by Mr. Whitbread, and agreed to by the House. It was then moved that the resolutions be communicated to the king; but the opinion being generally entertained that the sense of the House in regard to this transaction had been sufficiently expressed by the recording of the resolutions upon the journals, and that it would not be consistent with the dignity of the House to proceed any further in the matter, this motion was withdrawn. In consequence of this vote of the House, Lord Chatham retired from the ministry, and was succeeded as master-general of the Ordnance by Lord Mulgrave. A month elapsed after the formal resignation of Lord Chatham before his successor was appointed, during which interval, as is customary in respect to patent offices, his lordship continued to discharge the duties of the situation; abstaining, however, from advising in the cabinet, and from attending upon his Majesty with official reports, &c. Nevertheless, his continuing to perform official duty, under the peculiar circumstances of his position, gave rise to remarks in the House of Commons.k But the constitutional law which he had infringed had been sufficiently vindicated by his enforced retirement from office, and any further proceedings would have been unnecessary.1 exercise of preroga In 1830, a Mr. Comyn was sentenced to death, in Ireland, for Wrongful arson. King George IV. was petitioned on his behalf, and was induced to write himself to the lord-lieutenant, signifying his tive of pleasure that the sentence should be mitigated. Meanwhile, the mercy. lord-lieutenant, upon advice of the law officers, had decided that the law should take its course; and the prime minister (the Duke of Wellington) and home secretary (Mr. Peel) approved of this determination. Mr. Peel, indignant that the king should have exercised the prerogative of mercy without taking the advice or opinion of himself, or of any other responsible minister, addressed a strong remonstrance to his Majesty; ultimately, through the interposition of the prime minister, the king withdrew his order, and the original sentence was carried out.m of state. The constitutional channel of approach to the per- Secretary son of the sovereign is by means of a secretary of state, and it is through such an officer that the royal pleasure is communicated in regard to acts of govern j Parl. D. v. 16, p. 12 *. pole, Life of Perceval, v. 2, p. 72. * Ib. |