92 CHAPTER IV. THE LEGAL EXPRESSION OF THE ROYAL WILL IN Sir Walter case. § 1. The conduct of the executive government, no less than the administration of justice or the business of legislation, exhibits the peculiar character of our Mildmay's Constitution. We may trace in it at the same time the monarchical spirit of our institutions, and the arrangements by which the power of the King is controlled. A direct authority for the principle both that all political action proceeds from the King, and that such action must assume a prescribed and definite form, is found in a case determined in the reign of Queen Elizabeth and known as Sir Walter Mildmay's case.* The circumstances were these. An information was preferred by the Attorney-General against the executors of Sir Walter Mildmay as an accountant to the Queen. As to part of the sum claimed the jury found for the defendant; but as to the larger part they returned a special verdict. They found that Sir Walter Mildmay was Chancellor of the Exchequer; that the Lord Treasurer and the Sub-Treasurer had issued a warrant for the payment to Sir Walter Mildmay from the Queen's treasure of one hundred pounds yearly for his diet, and forty pounds yearly for his attend 11 Rep. 91a. ance in London during the vacation time, during the Queen's pleasure; that this additional payment was made in consideration of certain additional business and attendance with which Sir Walter Mildmay was charged; that the Queen had issued a warrant under her privy seal to the Treasurer Chamberlains and Under-Treasurer authorizing in effect the payment of money at their discretion for any services rendered to Her Majesty or costs incurred on her account; that after the issue of this warrant the sums in question had been paid to Sir Walter Mildmay under the authority of the warrant of the Treasurer and UnderTreasurer; "and if upon the whole matter the court shall adjudge that the said Sir Walter Mildmay received the said money to render account to the Queen, then they found for the Queen; and if not, for the defendants." On this case it was resolved: First, "that no officer that the King has nor all of them together can ex officio issue or dispose of the King's treasure, although it be for the honour or profit of the King himself; for it is true that it is for the honour and profit of the King that good service done to the King should be rewarded; but it ought to be rewarded by the King himself, or by his warrant and by no other; for the King's treasury (being the bond of peace, the preserver of the honour and safety of the realm, and the sinews of war) is of so high estimation in law in respect of the necessity of it that the embezzling of treasure-trove, although it was not in the King's coffers, was treason; and treasure and other valuable chattels are so necessary and incident to the Crown that in the King's case they shall go with the Crown to the successor, and not to the executors, as in the case of common persons; and therefore without the King's warrant no treasure shall be issued for any cause whatsoever by any officer ex officio." Second, it was resolved that " every warrant of the Queen herself to issue her treasure is not sufficient; for the Queen's warrant by word of mouth, or what is more the Queen's warrant in writing under her privy signet, is not sufficient to issue her treasure, and that appears by a judgment in the Exchequer in Petelian's case,* where such warrant under the privy signet to issue the King's treasure was disallowed. And yet in some cases the law takes notice of the privy signet, and therefore if the King under his privy signet doth prohibit any to pass out of the realm, it is sufficient. But the warrant which is sufficient in law to issue the King's treasure ought to be under the great seal or privy seal." It was also resolved that, on the construction of the instrument, the warrant under the privy seal did not include the case of the Chancellor of the Exchequer, but applied to inferior officers only; and that although Sir Walter had received the King's treasure to his own use, yet forasmuch as he received it without a lawful warrant, he knowing that it was the King's treasure, the law makes a privity in the King's case, and therefore he may charge him as an accountant. of State must § 2. This case then shows that every important act of State must be done by the King. Such acts must indeed Commands follow a prescribed form, but still they are the So essential is this sanction of the proceed from King's acts. Crown. King that he cannot delegate his authority to issue any public command. He cannot, as notwithstanding some precedents to the contrary it seems to be now settled, dispense by any means or in any exigency with the use of the sign manual, or provide any substitute for it. If he be physically unable to write, provision may be made * Hil. 1 Edw. IV., Rot. 14. for his infirmity by an Act of Parliament, but not otherwise. When during the illness of George the Fourth Parliament✶ sanctioned the use of a stamp instead of the sign manual, the most ample precautions were taken that the stamp should not be affixed to any instrument except in the presence, and in each case by the express command, of the King. In the preceding reign the necessity for the King's personal action was even still more forcibly shown. In 1811, when George III. was struck with his last hopeless. illness, certain sums had been duly appropriated by Parliament for the military and naval services. But the King was incapable of signing any instrument, and the Regency Bill had not yet been passed. The usual warrants, therefore, under the privy seal, directing the issue of such moneys from the Exchequer, could not be made. The Keeper of the privy seal was prepared to incur the responsibility of issuing the seal without the Royal commands. But it was necessary that the clerks of the privy seal should prepare the letters which were to pass under the privy seal; and these officers thought that they were precluded by their oaths of office from preparing, in the absence of any command signified under the sign manual, any such letters. In this emergency the Lords of the Treasury addressed warrants to the Auditor of the Exchequer, directing him to draw on the Bank of England two orders for the amount of half a million of money each. Lord Grenville, who was then Auditor, desired to have the advice of the Attorney and Solicitor General. The opinion of these officers was that the warrants were not a sufficient authority for the Auditor. The Lords of the Treasury offered to assume the entire responsibility of the proceedings. Lord Grenville, however, pointed out that his responsibility could not be thus transferred, and resolutely refused to draw the orders. Ultimately the money was obtained by means of a resolution of both Houses of Parliament; but, notwithstanding the pressing necessity of the occasion, a protest against such an assumption of the executive powers of the Crown was recorded in the House of Lords by six Royal Dukes and fifteen other Peers.* § 3. "The King," says Lord Coke,+ "being a body politique, cannot command but by matter of record." Agencies for Another great authority assures us that the expressing excellency of the Sovereign is so high in the Royal com For mands. law that no freehold may be given to or derived. from the Crown but by matter of record. Whichever of these reasons be correct, the actual fact is undisputed. We have seen that all commands relating to the administration of justice are expressed under the seal of some court. the transaction of non-judicial business the law recognizes three seals of the King. These are the great seal, the privy seal, and the signet. All Royal grants and patents must be made under these seals, or some of them. Each seal is entrusted to its appropriate guardian, whose duty is to examine every instrument to which it is proposed that the seal in his custody should be affixed, and to inform the King of any objection to its use that he may observe. The clerks, too, whose duty is to prepare in their several offices the instrument intended to be sealed, are, as the precedent of 1811 shows, bound to see that they do not prepare and deal with an illegal instrument. The number of persons, indeed, who are directly responsible for the issue of any grant of the Crown is considerable; and the grant itself involves a highly elaborate process. Grants are now * See May's Const. Hist., i. 179, 180. + 2 Inst., 186. Doctor and Student, book i. chap. 6. |