TODD'S PARLIAMENTARY GOVERNMENT.* THE announcement that Mr. Spencer Walpole was
about to bring out a revised edition of Todd's Parliamentary Govern- ment, came as an excellent piece of news to all students of the Constitution. To have Dr. Todd's sound and judicious * Parii(1111011tall/ Governmentin England : it, Orin, Dovelopment, and Practical Operarion. By the Into Alpheus Todd, LL.D., °M.G. Now Edition. Abridged
and Revised by waver Walpole. `.! London: Sainpsou Low, Marston, and Co. 18D2.
work brought up to date by so competent an authority as Mr. Spencer Walpole, seemed an ideal arrangement. Those who have looked forward to the appearance of the work will have no cause for disappointment. Dr. Todd possessed both a keen instinctive appreciation of the Constitution, and as profound a knowledge of its working as could possibly have been obtained through books. Mr. Spencer Wal- pole, through his wide acquaintance with the actual con- duct of public affairs, and his intimacy with the men who, during the last thirty years, have been called upon to work the machine, has had special opportunities for under- standing the practical side of Parliamentary Government. Hence, at the point where Dr. Todd was sometimes weak, Mr. Spencer Walpole is strong; and the combination of the two authors which we get in the present edition, greatly increases its value. It becomes, indeed, of the first importance as a work of reference in regard to the Constitution of the United Kingdom. One of its chief merits is to be found in the fact that authority is given for every essential statement. Works on the Constitution are too often filled with generalisations which may or may not be well founded, but which one does not care to take upon trust, be the writer the most learned and judicious lawyer and historian in the country. Dr. Todd and Mr. Spencer Walpole always base their conclusions on some recognised statement of authority, and, as a rule, quote in full the actual words on which they rely.
As it would be impossible to condense within the limits of a review the principles on which Parliamentary Government is based, we shall merely endeavour to point out some of the less well-known features of the Constitution. Few people are, we suspect, aware that the office of Private Secretary of the Sovereign is an office directly known to the Constitution, and not a mere accidental office of convenience. George III. was the first King who employed a Private Secretary ; but as this officer was not paid out of the public funds, his functions were not made the subject of Parliamentary comment. George IV., however, when Regent, appointed a Private Secre- tary who was paid by the Treasury, and the intervention of a person between Ministers and the Sovereign was challenged a most unconstitutional proceeding," with the result that the salary of the Private Secretary was again put on the Privy Purse. As to the present position of the Sovereign's Private Secretary, we may quote the following remarks by Dr. Todd :— " Upon the accession of Queen Victoria it was determined that no Private Secretary should be assigned to her, lost the influence of such an officer over a youthful and inexperienced Sovereign should prove prejudicial to the State. But Lord Melbourne, who was then First Minister of the Crown, undertook to act also as her Majesty's Private Secretary. The assumption by the Prime Minister of such a position towards the Queen, in any circum- stances, was characterised by Lord Aberdeen as an unconsti- tutional' proceeding (Hans. D. v. 130, p. 9(3) ; being calculated to impair the free exercise of the Royal judgment, under the plau- sible pretext of assisting the Sovereign in the performance of her onerous functions. But we are safe in concluding that no such intention influenced Lord Melbourne upon this occasion, and that his sole desire was to afford to his Royal mistress, in her youth and inexperience, the benefit of his matured acquaintance with the routine of the Government. (It was Lord Melbourne's delibe- rate judgment that the Queen should not have a Private Secre- tary,—Life of Lord .T. Russell, vol. 1, page 284, n.) After her Majesty's marriage with Prince Albert, his Royal Highness, with the sanction of the Ministers of the Crown, assumed the duties of the Queen's Private Secretary ; although, in consideration of his rank and station, he had been made a Privy Councillor. He acquitted himself of tho duties which thus devolved upon him to the admiration of all parties. Subsequent to the great loss which her Majesty sustained in the premature decease of her lamented consort, several gentlemen in succession were appointed as her Private Secretary. (Viz., Sir T. M. Biddulph and Lieutenant General the Hon. Charles Grey. Upon the death of General Grey, in April, 1870, Colonel Ponsonby was gazetted to this office.) Of late years no constitutional objection has been urged to the continuance of this office ; and it is clear that the great and increasing amount of routine duty devolving upon an English Sovereign at the present day, as well as a consideration ot the altered position of the Crown towards the members of the Administration since the establishment of Parliamentary Govern- ment, alike justify and require the appointment."
The ideal state of things in a Constitutional Monarchy is, of course, that the Sovereign should be, as it were, Permanent Under-Secretary to the nation,—should obey the will of Ministers in the last resort, but should at the same time have the great weight and influence which long experience, minute knowledge, and aloofness from party-ties give to the Per- manent Heads of the Departments of State. The position of the Sovereign, from this point of view, was admirably put by the late Prince Consort :— " The Sovereign should be, if possible, the best-informed person in the Empire, as to the progress of political events and the current of political feeling both at home and abroad." Ministries change, and when they go out of office lose the means of access to the best information which they had formerly at command. The Sovereign remains, and to him this information is always open. The most patriotic Minister has to think of his party. His judgment, therefore, is often insensibly warped by party considera- tions. Not so the constitutional Sovereign, who is exposed to no such disturbing agency. As the permanent head of the nation, he has only to consider what is best for its welfare and its honour ; and his accumulated knowledge and experience, and his calm and practised judgment, are always available in Council to the Ministry for the time, without distinction of party.' (Prince Albert's words, quoted in Martin's Pr. Consort, v. 2, p. 159; and see lb. p. 300; Mr. Disraeli's speech at Manchester, April 3, 1872. See also, on the advantages derivable from the experience of a saga- cious King, Bagehot, on the Eng. Cond. pp. 103-100.)" That is perfectly true ; and we see from the history of the present reign how well it works. It must, however, be admitted that if we should ever again have a King like George IV., or even like William IV., we might find ourselves with a very inefficient Permanent Under-Secretary to the nation. That, however, is a risk which cannot be insured against; and it is useless, therefore, to trouble about it.
It is sometimes asked by those who are curious in regard to the minutice of the Constitution, whether the Sovereign can give evidence in a Court of law. The answer given by Dr. Todd is as follows :— " The curious question, whether the Sovereign is examinable as a witness, was raised in 1818, in the Berkeley peerage case, in reference to the Prince Regent. The Crown lawyers were unani- mous in their opinion that the reigning monarch could not, by any mode, give evidence as a witness in a civil suit. (See the opinion, in Yonge's Life of Ld. Liverpool, v. 2, pp. 369-375.) On the other hand, it has been asserted by Lord Campbell, that the Sovereign, if so pleased, might be examined as a witness in any case, civil or criminal, but that he must be sworn ; although there would be no temporal sanction to the oath,' inasmuch as he is the fountain of justice, and no wrong may be imputed to him. (Lives of the Chancellors, v. 2, p. 527.) " What Dr. Todd has to say about martial law is very interesting. It is widely believed that under circumstances of great peril, martial law might be proclaimed by an execu- tive act. This is a mistake. Military law—i.e., the Mutiny Act —is, of course, part of the law of the land as long as the Mutiny Act is in operation ; but martial law is a term without mean- ing in England, unless, of course, Parliament were to enact that it might be proclaimed, and were to define what it is, for without such definition it would be impossible to apply it. As Sir A. Cockburn said, in "Regina v. Nelson and Brand," there is no inherent prerogative in the Crown to proclaim martial law " in any circumstances or conditions whatsoever." This, however, is not so great a restriction as it seems, for since the authorities may always meet illegal force by any force necessary for the purpose, all the real benefits of martial law can be obtained under the ordinary law. The doctrine expressed by Lord Chief Justice Cockburn that "the law of necessity is part and parcel of the law of England" gives all that is required. For example, to quote the Judge's words again :—" If a mutiny breaks out on board-ship, immediate force may be resorted to ; you may quell the mutiny if necessary by killing those engaged in it." His conclusion on the whole matter is as follows :— "It is the law of necessity,' which is part and parcel of the law of England.' The question really is, whether for the sup- pression of a rebellion, you may subject persons not actively engaged in it, and whom you therefore cannot kill on the spot, to an anomalous and exceptional law, and try them for their lives without the safeguards which the law ought to afford.' To say that the necessity of suppressing rebellion is what justifies the exercise of martial law the sense of an arbitrary, illegal, and irregular interposition of authority—is a fearful and odious doc- trine. There are considerations more important oven than the shortening the temporary duration of an insurrection. Among them are the eternal and immutable principles of justice, prin- ciples which can never be violated without lasting detriment to the true interests and well-being of a civilised community.'" To put it roughly, any one who proclaims martial law will want an "Act of Indemnity" just as much as if be carried oat martial law without any previous announcement. Nothing is changed or gained by saying that certain acts were in accordance with martial law.
Before we leave this ably revised and edited edition of a most interesting book, we may notice the passage which deals with the curious paradox, that if the Sovereign were to kill a person wilfully, deliberately, and maliciously with his own hand, he would be in no possible way amenable to justice. As a matter of fact, if such a thing were ever to happen in England—it is said that it happened some ten years ago in the case of a Continental Monarch—that tremendous engine, a Commission of Lunacy, would be employed, the King would be declared mad, and a Regent would be appointed. As so often happens, however, in our Constitution, this paradox is by no means without its advantages, as may be seen in the quotation from Locke, which closes the following passage :— "It has been already stated, as a constitutional principle, that the personal actions of the Sovereign, not being acts of Govern- ment, are not under the cognisance of law ; and that as an in- dividual he is independent of, and not amenable to, any earthly power of jurisdiction. Some further remarks on this point may be appropriate. The best authorities have declared that there is no legal remedy obtainable by the subject for personal acts of tyranny and oppression on the part of the Sovereign which have not been instigated by bad advisers, but have proceeded from the personal misconduct of the Monarch himself. Should any such eases occur, so far as the ordinary course of law is concerned, they would be covered by the maximum which forbids the imputation of wrong to the Sovereign (Broom's Leg. Max., p. 63), and the erring Prince must be left to the rebukes of his own conscience, and to his personal accountability to God alone. No decisions in regard to common criminal offences committed by any English. King are to be found in the books ; the jurists contending that the case of a Sovereign being guilty of a common crime must be treated as the laws of Solon treated parricide,—it must be con- sidered an impossibility. (Fischel, Eng. Coast., p. 123.) It was truly observed by Locke, in his essay on Government, that the in- conveniency of some particular mischiefs that may happen. sometimes, when a heady Prince comes to the throne, are well recompensed by the peace and public security which result from the person of the chief magistrate being set out of reach of danger. (Book 2, section 205; and see Cox, Eng. Govt., pp-. 408-416)."
With so much notice, we must take leave of a book which should find its way on to the shelves of every well-selected library. We must, however, add a prayer to the publishers.
Will they not increase the benefits they have already given to the reading public by bringing out a new edition of Todd's Parliamentary Government in the Colonies? That is a book which contains information to be found nowhere else. If brought up to date, it would, we feel sure, find a large amount of support among students of the Constitution.
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