17 JANUARY 1863, Page 7


THERE are a great many subjects on which Englishmen have a natural right to be alarmed. The designs of the French Emperor and the ambition of Russia are familiar in- stances, and with the throne of the Sultan tottering, the coffee-house politician can seldom boast himself as— "Quid Teridaten terreat, unice Secures."

Then, at home, there is the uprising of democracy, the ex- haustion of the soil by high farming, the spread of scepticism, and a host of other bugbears, by which any one who feels himself too happy may enjoy a very tolerable allowance of terror. But, perhaps, of all the gratuitous causes of misgiving -which ever were thrust upon us, that which the Times disco- vered last Wednesday, is the most wonderful. A Mr. George O'Malley Irwin, an Irishman, brought a ridi- culous action against Sir George Grey for not pre- senting his petition of right to the Queen, and kept 'half the Ministry dancing attendance in the Court of Common Pleas for an autumn day. Sir George proved that he did present it, and advised the Queen not to endorse it with the magic formula, "Let right be done." And the Court, of course, held that ho was not responsible for the advice he tendered to the Sovereign, and a verdict was entered for him. Mr. Irwin has now moved for at new trial, and has been refused it ; whereupon the Times 'has carefully alluded to Charles I. and the bulwarks of our liberty, and after informing the public that Mr. Irwin's action was based on the Petitions of Right Act, which "has not yet found its way into our histories, for it was passed in the -year 1860, and the author of it is . . . Mr. Bevil]," winds -up with a solemn warning "how questionable is the policy of Mr. Bovill's Act, unless its action can be confined within strict and safe limits."

It is with sincere pleasure that we inform any of those timid 'votaries of our glorious constitution, whose Conservative pre- judices would be shocked at finding themselves exposed to these apprehensions at the hands of a Conservative lawyer, that they may nevertheless sleep in peace. Whatever may be the dangers inherent in petitions of right, Mr. Bovill's Act has added nothing to them. As to the causes for which petitions may be successfully presented to the Crown, it leaves the law precisely as it found it. It adds nothing to it, and tales nothing from it. What happened to Mr. Irwin in this case, would have happened to him before 1860, and happens to him now for the very reasons for which it would have happened to him then. But as the subject is one of some general interest, it may be well, even at the risk of appearing to parade very elementary knowledge, to state the theory of petitions of right for the benefit of the public.

By the constitution of England no misconduct can be im- puted to the Sovereign—a principle embodied in the familiar maxim or fiction that the king can do no wrong. The one -exception to this rule is that the Houses of Parliament, .although it is usual for them to couch their remonstrances in the decent form of opposition to the evil advice tendered to the Crown by its Ministers, have the right to treat the actions ef the Sovereign as proceeding from himself personally, and in the more troubled periods of our history this right has been unsparingly exercised. This privilege, however, is not con- ceded to any private person, and in case it should ever happen that a subject receives, for instance, personal injury from the Sovereign's own hands, or is maligned by him, either by speech .or writing, he would be, and still is, absolutely without redress. If such a case unhappily ever should occur, we are remitted by the solemn Sir William Blackstone to "those inherent, though latent, powers of society which no climate, no time, no constitution, no contract, can ever destroy or diminish." It is obvious, however, that the wrongs which the Crown inflicts on a subject must almost always be perpetrated through the medium of his servants or ministers, who by no means share his immunity. The command of the sovereign is no justification or even palliation of an illegal act ; and they who obey him illegally are responsible for their conduct to those whom they have wronged, either criminally or in damages—either to the ordinary courts of law or to a Parliamentary impeachment.

There is, however, one exception—not, indeed, in theory, but in practice—to this constitutional principle, and that is when a subject has a demand upon the Crown in respect of property. The old custom was to present a petition to the Chancellor, who presented it to the Crown, and the Crown made the necessary endorsement in reliance on the Chancellor's advice. But if the petitioner appeared to have no claim of property on the Crown the endorsement was always refused. But even when the endorsement was obtained, the troubles of the petitioner had only just begun. He had to establish his right, he was sent about from office to office in a way which justified Mr. Dickens's satire on the Circumlocution Office, he paid enormous fees everywhere, and when at last he got the land or money which he claimed, the Crown did not allow him a farthing for the expense to which he had been put. It was this state of things to which the Act of 1860 applied a remedy. It directs that every petition of right shall be drawn up in a specified form, and be left with the Home Secretary, "in order that the same may be submitted to Her Majesty, and in order that Her Majesty, if she shall think fit, may grant herfiat that right be done ;" and it expressly provides that no fee shall be paid for the presen- tation. If the fiat is granted, a copy is to be left with the Solicitor of the Treasury, on whom the Act throws the burden of forwarding it to the proper department of Government. Thenceforth the proceedings are those of an ordinary action or suit. The petition names the court in which the petitioner proposes to proceed, and as soon as it is endorsed with the royal flat it becomes in effect a declaration, which is to be served on the Solicitor to the Treasury as the defendant. And the Act further provides for the recovery of costs. From this short outline it will be clear that the law of petitions of right is absolutely un- altered by Mr. Bovill's Act. It directs that the Home Secretary, instead of the Chancellor, shall present the petition to the Crown, it provides a simple procedure for the recovery of the petitioner's rights, and it assimilates that procedure to that of the ordinary courts; but the Crown grants its fiat now in no case in which it would not have granted its fiat before the Act was passed. In Mr. Irwin's case it was clear that, whether he had a real grievance or not, the Crown was not and never had been, in possession of a foot of land or a single shilling belonging to him, and he did not allege that it was. Whatever other reasons Sir George Grey may have had for advising Her Majesty to refuse her fiat, this alone was amply sufficient, and the course which he took is sufficient to prove—what, however, needed no proof— that Mr. Bovill's Act introduces no new " policy " into the law, and operates only within the "strict and safe limits" of immemorial usage.

As to Mr. Irwin's grievance, we desire to maintain a judi- cious silence. According to Chief Justice Elle, it was that having been indicted in 1834 for criminally misleading the Irish Government, he desired the members of the Govern- ment to attend and give evidence (apparently a common desire with Mr. Irwin), and through their failure to attend was con- victed, fined, and imprisoned. If this were so, and the Ministers Mr. Irwin wanted were duly subpcenaed, his remedy clearly was to bring actions against them for not attending. A Minister is just as much bound to attend on his subpcena as the idlest lounger in Bond street, and Mr. Irwin is clearly aware of his rights. If the Minister fails to attend, he will be responsible in damages for any consequences which may result therefrom to the person requiring his evidence ; and if this be indeed all, it is difficult to believe Mr. Irwin's asser- tion that he obtained an award in his favour in 1858 from the then Attorney-General, Sir Richard Bethell. But whatever may be the rights of this matter it is clear that they were not the proper subject for a petition of right. The Crown not only had no property of Mr. Irwin's, but it had in reality nothing in the world to do with the matter. He had, never- theless a right to have his petition presented, and it does not predispose one in his favour that Sir George Grey distinctly asserted that he had taken care that Mr. Irwin was informed that it had been presented before the action for the non- presentation was commenced, and that, when the plain- tiff' was asked to produce the letter, he refused, on the ground that it was addressed to a third person. As, however, a portion of the original grievance was that his father, in consequence of his conviction, had not left him a freehold estate, and as he now complained that a baker and grocer who lived near Sir George had been on the jury, it is but kind to think of Mr. Irwin as one of those per- sons who have brooded over a supposed injury until they are scarcely responsible for their conduct. But even if the injury were real, it was clear that Sir George had presented the petition to the Crown—that he rightly advised the Crown not to grant its fat, and that even if he had given the Crown bad advice he was responsible for it, not to the Courts of Law, but to Parliament alone. And as Mr. Irwin expressed his intention of appealing to the House of Commons, we very sincerely pity Parliament when we say so.