PRECEDENT.
Tim main question on all occasions with British statesmen and le- gislators, seems to be, not whether any thing proposed to be done is right in itself, but whether there is any precedent for doing it. Our constitutional code is, like our civil code, an unwritten, a con- suetudinary system : its practice and doctrines must be gathered from the decisions pronounced from time to time by the compe- tent authorities. In the case of the civil code, attempts have been made to supply information by means of the Term Reports. It is much to be desired that analogous reports of the decisions pro- nounced from time to time in great constitutional questions were published. Our thoughts have been turned to this want by reflecting on the little attention that four weighty decisions in constitutional law, which have been pronounced within these three years, appear to have attracted. It is not our part to set up for authorized re- porters ; but it is necessary to give a short abstract of each of the cases, in order to place in a clear point of view the importance of having a distinct record kept of all similar judgments.
1. MELBOURNE V. WELLINGTON AND PEEL. Melbourne, as kw-es of Grey, claimed to be appointed Premier, on the ground that his author having been appointed to that office by a majority of the House of Commons, he was entitled to eject the other parties, who had been appointed by the King and the House of Lords. Wel- lington and Peel opposed this process of ejectment, on the ground that the House of Commons had only one vote in the appointment of Premier, the House of Lords and the King having also each a vote ; that in the case of the concurrence of three parties being necessary to an appointment, the majority must prevail ; that they being nominated by the Lords and King, and the opponents only by the Commons, had the better claim. Decision in favour of the plaintiff. 2. MELBOURNE V. PEEL. The plaintiff showed, that the votes of the Commons being equally shared between him and the de- fendant, the latter had taken possession of the office of Premier, on the plea that the appointment in such a case devolved on the Lords, the Queen being acquiescent ; and maintained that the casting-vote in such cases lay with the Ladies of the Bedchamber. The defendant allowed judgment to go by default. 3. PEEL V. MELBOURNE. The plaintiff maintained, (Judgment No. 1,) that he having now been named Premier by the Commons, ought to be installed in the office. The defendant demurred, on the ground that the Queen had appointed him, and that in the case quoted judgment was only pronounced against the claim of the Lords. Judgment for the plaintiff. 4. PEEL V. CERTAIN CORPORATIONS AND OTHER BODIES. This case arose out of a claim advanced by certain corporations and other bodies, applying personally to the Queen to discharge one of the functions of the Crown. It was maintained by the plaintiff, that this was an infringement upon the right of himself and col- leagues to be the sole medium through which the Sovereign was approached and business transacted. Judgment in favour of the plaintiff.
The second case, judgment having been allowed to go by default, can scarcely be viewed as a precedent. The question mooted, however, is a curious one ; and it is to be wished that it had been decided in foro contention.
The other three cases seem to establish—first, that whoever is designated for Premier by a majority of the House of Commons, must be appointed by the Crown, the will of the Sovereign and the Peers going for nothing : second, that all petitions to the Crown to exercise any of its functions must pass through the hands of the Premier and his colleagues ; and that the Crown can only deliberate and decide upon them in Council, the proceedings of the Council being kept secret. The inference from this is, that though the wearer of the Crown may nominally be Sovereign, the Prime Minister for the time being is Viceroy over him or her ; and that the Premier is any person a majority of the House of Com- mons choose to appoint ; as the House of Commons, again, are the members whom the various constituencies please to appoint. Some curious doubts are suggested by this doctrine. In the first place, the Executive of this country is appointed by the constitu- encies : if the Executive persevere in a course of misgovernment, the constituencies are to blame, but cannot be called to account— they are irresponsible. If the constituencies were composed of all the citizens of the empire, there would be no cause for com- plaint ; they would only be mismanaging their own affairs—doing what they liked with their own. But in truth, the constituencies are only a part of the citizens—a minority of the citizens. They do what they like with the property of other people as well as with their own. In the second place, it is difficult to see of what use the Sove- reign is in such a system of government. The business is trans- acted by the Constituencies, the Commons, and the Minister. The name only of the Sovereign is used : he has no voice in the ap- pointment of {he Minister, and cannot act except with the know- ledge and consent of the Minister. It is not even supposed that the Sovereign does any thing—the Minister bears the responsibility of all. In the days of oracles, the priest really answered the ques- tions put, and could have answered them quite as well without the intervention of the oracle ; but the oracle bore the responsibility— it was of use to the priest, if not to the votaries. But with us the Sovereign would seem to be of as little use to the Minister as to the People.
Our known loyalty will protect us from any suspicion of wishing to hint in the remotest way that a Sovereign should be dispensed with in this country. We would merely remark, that it may not be safe to put the real character of the office so prominently and dis- tinctly on record as has been done by the decisions quoted above. " A dim religious light" is the only one in which such institutions can be advantageously viewed. Some may imagine, that, holding this opinion, we ought not to have given publicity to the decisions in question. This would be an erroneous notion : they were suffi- ciently known beforehand to be accessible to all. who might be inclined to work mischief with them ; but had our System of re- porting existed, no man or set of men, in the face of such inevitable publicity, would have had the madness to pronounce the decisions.
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