active share which the King then took in the business of administration, and the absence of those rules which are now familiar as to the exercise of the discretionary power of the Crown. But although Mr. Hallam* seems to consider "the delicate question of ministerial responsibility in matters where the Sovereign has interposed by his own command" as unsettled in the reign of Anne, there seems little doubt that both then and now and at all times, the voice of the law utters on this subject no uncertain sound, although in evil times that voice may have been silenced or disregarded.

If any

Personal

advisers.

The evil

§ 7. A similar responsibility attaches to those persons whose duty it is to counsel the King as that which attaches to those who execute his commands. person advise the King to do any illegal act, he liability of is guilty of a misprision, no less than if he had assisted in the commission of the act itself. counsellor needs not be concerned in the execution of his project. The advice and the execution are two distinct offences, although both may be committed by the same person. Nor does the legal effect of such counsel depend upon the official position of the counsellor. The offence is the same whether it be committed by a person who is or by a person who is not connected with the business on which he is consulted. On some occasions when the business is urgent and a meeting of the Cabinet cannot conveniently be procured, the practice is that some of the leading ministers meet, and, after consultation, communicate their opinions to Her Majesty. Every one of the ministers who were present at such a meeting is equally responsible with the minister to whose department the

*Const. Hist., iii. 232.

business belongs for the advice that they thus jointly tender.* There may perhaps be a practical difficulty in obtaining legal evidence of any criminal advice. In the Act of Settlement an attempt was made to obviate this difficulty by the provision that all matters of state should be debated in the Privy Council; and that their resolutions should be signed by the councillors present. This clause, however, along with several others of the same Act, was repealed before it came into operation, and Mr. Hallam seems to think that legal proof has thus been rendered unattainable. In the case of any great officer of state the use of the seal, of which he had the custody, or his signature or countersignature to any instrument in question, would be evidence as well on a charge of maladministration, as (though not conclusively) on a charge of tendering evil advice. In Herbert's case, although the impeachment contained articles for advising and contriving, as well as for exhibiting the offensive instrument, and although it was strongly urged that the acknowledged exhibition raised a legal presumption of the prisoner's contrivance and advice, the Lords would not admit the argument, and found him guilty of the exhibition only. But although in the case of offenders unconnected with the particular business the possession of sufficient evidence may be difficult, it is not impossible. In the impeachment of Lord Danby, and afterwards of Lord Oxford, for (amongst other charges) giving certain advice, although both these proceedings from other causes were unsuccessful, the Commons appear to have obtained from documents and the official acts of the prisoner ample evidence. It is probable that the principal members of the ministry would be presumed to be cognizant of the acts of the government, and that each

* Per Lord J. Russell, 3 Hansard, cxxx. 387.

cabinet minister would be presumed to have either advised the Crown or acquiesced in the advice given by his colleagues at least in all matters within his particular department and would not be permitted to evade official knowledge of such matters. Such presumptions must necessarily arise from the invariable practice in the administration of the affairs of state which it would not be difficult to prove. *

Officers

responsible to ordinary

courts.

§ 8. This principle of the personal responsibility of any officer for his acts or his advice depends for its successful operation upon another principle not less characteristic of our country, and of which the sad experience of less fortunate nations attests the importance. The officer is not only responsible for his acts, but he is responsible to the ordinary tribunals. However disagreeable or inconvenient an inquiry may be to the Government of the day, the whole force of the Administration cannot either prevent an action from being commenced in the usual manner against any public officer, or control in the slightest degree its course after its commencement. I have already mentioned the peremptory denial with which the judges met the claims of the Crown to withdraw from the ordinary tribunals any case that seemed to merit Royal attention.+ The exercise of the so-called martial law unsupported by any statutable authority was one of the grievances with which the Petition of Rights dealt, and in after years was the point on which the judges of James the Second proved most refractory. The case was far otherwise in France. The strange

Bowyer's Constitutional Law, 129; and see Cox's Institutions, 244.

For an attempt to evoke causes before the Chancellor by means of the writ de Rege inconsulto, and Bacon's object in advising this proceeding, see

Mr. Gardiner's Hist. of Eng., ii. 266.

expressions la justice administrative et la garantie des fonctionnaires, for which our language can with difficulty find an imperfect translation,* have been familiar in France as well under the old as under the new régime. The council of state and the inferior extraordinary jurisdictions. that were from time to time created constantly encroached upon the jurisdiction of the original courts. The rule was at length established + that all suits in which a public interest was involved, or which arose out of the construction to be put on any act of the administration, were not within the competency of the ordinary judges, whose only business it was to decide between private interests. This rule was merely the formal acknowledgment of the power, which the council had long exercised, of Evocation, or the calling up to its own superior jurisdiction from the ordinary courts suits in which the administration had an interest. In the exercise of this power the council continually called up to its jurisdiction suits which were connected in only the most remote manner with matters of administrative interest, and not unfrequently suits which had not even the pretence of such a connection. No public officer of the old monarchy was allowed to be the subject of proceedings in any ordinary court. It was held that the principles of such courts could never be reconciled with those of the government; that the public business would be disturbed by constant litigation against the officers of the various departments; and that the King's authority would be compromised by any such proceedings. This feeling is so strongly impressed on the French mind that the Revolutionists gave legal form to the usurped jurisdiction of the Royal council, and that Imperialists and Legitimists alike have concurred in supporting this doctrine of the Revolution.

* De Tocqueville's France before the Revolution, 95, note.

+ lb., 98.

46

"Amongst the nine or ten Constitutions," says M. De Tocqueville,* "which have been established in perpetuity in France within the last sixty years, there is one in which it was expressly provided that no agent of the administration can be prosecuted before the ordinary courts of law without having previously obtained the assent of the government to such a prosecution. This clause appeared to be so well devised that when the Constitution to which it belonged was destroyed this provision was saved from the wreck; and it has ever since been carefully preserved from the injuries of revolutions. The administrative body still calls the privilege secured to them by this article one of the great conquests of 1789, but in this they are mistaken; for under the old monarchy the government was not less solicitous than it is in our own times to spare its officers the unpleasantness of rendering an account in a court of law like any other private citizens. The only essential difference between the two periods is this. Before the Revolution, the government could only shelter its agents by having recourse to illegal and arbitrary measures; since the Revolution, it can legally allow them to violate the laws."

Impeach

ment.

§ 9. There is a form of trial for state offences which at first seems inconsistent with the principle that all offenders are amenable to the ordinary courts. This is the proceeding by impeachment. But impeachment, although recourse is seldom now had to it, is a proceeding well known to the law. It is not a means of defending the administrative officers, but it was designed more effectually to attack them. It is not, as some persons appear to think, a novel form of jurisdiction over acts that

*France before the Revolution, 102.