LORD DERBY'S CONSTITUTIONAL HOBGOBLIN.
THE Ministry are evidently very hard pushed to pick their way through the difficulties with which a great hostile majority in the House of Commons on the most important of all the questions of the day, envelope them. To tide over the difficulty till after the dissolution, and till the operation of the Reform Act of last year can be seen, has been Mr. Disraeli's great aim ; and he thought he had secured it, and moreover, secured himself a certain year of power before any one could dispute his sovereignty, by deferring the operation of the new Act till 1869. As it turns out, however, this manoeuvre has only landed him in fresh difficulties from which Lord Derby attempted in vain to extricate his humble friend the Prime Minister, by his dashing charge of Tuesday night. The difficulty, as we have already twice pointed out, is this :—Had the Liberal party been able to proceed at once by Bill in the case of the Irish Church, the Tories might have accepted the defeat in the Lower House, on the ground that it would be absurd to appeal to the old constituencies and Impossible to appeal at once to the new, and might have evaded any necessity of acting with the majority by throwing out the Bill in the ,Lords. Unfortunately for the Ministry, however, it is a case in which, by constitutional precedent, it is not possible to proceed at once by Bill. Though the- Bill would only suspend the ordinary action of the Crown in its duty of appointing new Bishops and new incum- bents to the Irish sees and benefices which may be vacated. before the policy of the nation is finally decided, yet it would be unconstitutional in form even to propose to restrict and limit the duties of the Crown,—a co-ordinate branch of the Legislature, in theory, at least,—without the formal assent of the Crown to these parliamentary preliminaries. The Bill which Mr. Gladstone proposes to bring in as the proper logical consequent of his resolutions, would not be constitutional unless the assent of the Crown to its discussion, so far at least as the privileges of the Crown might be involved, had been obtained. It was to meet this difficulty that Mr. Gladstone proposed his second. and third resolutions, which follow that in which the Commons express their own opinion in favour of the disestablishment of the Protestant Church in Ireland. The second and third resolutions propose an address to the Queen, begging her, "with a view to the pur- poses aforesaid " (i.e., the purpose of the Commons to dis- establish religion in Ireland, and to prepare the way for that work by at once preventing the vesting of new personal interests in sees, Crown benefices, &c.), to place at the dis- posal of Parliament her interest in the temporalities of the Irish Church,—with a view to the discussion by Parliament of - a. Bill which would otherwise trespass on her prerogative, and be therefore in limine unconstitutional. Now here comes the difficulty. If this address to the Crown is carried by the Opposi- tion, Mr. Disraeli must advise the Queen either to accede to it or to refuse it. It is true that to advise the Queen to accede- to it, is not to express or even to imply his approbation of the policy indicated. It is quite open to any Prime Minister to say, "I think no prerogative of the Crown ought to stand in the way of a free discussion in Parliament of measures which seem to Parliament to need thorough discussion. If Parliament agree with me in disapproving these measures, I shall be fortified in my objections to it. If Parliament disagree with me, then- will be the time for me to appeal to the country. I may fairly be allowed to advise the Crown not to take technical constitutional objections to the discussion of a measure which yet I heartily disapprove." But though this would be advice which it would be open to Mr. Disraeli to give, it is not advice which it would be at all agreeable to Mr. Disraeli to give. It- would look to most of his party like a preparation for surren- der. It would dishearten them and encourage his opponents.. It would be, at least, the loss of a critical move. There are- very many Conservatives who would scarcely grasp the distinc- tion between such advice and a confession of defeat,—who would think that Mr. Disraeli had been cowed by the majority against him. The popular impression would be apt to be that the Queen had been advised to consent to the " spoliation " of the Irish Church,—though, in fact, she would only have waived her technical right to veto at once the discussion of the sus- pensive measure proposed. On the other hand, for Mr. Disraeli to advise the Queen to reject so moderate a request of the Commons (which only in fact asks leave that the Houses may discuss freely a proposition to suspend a certain prerogative" of the Throne's), would be a very strong and unpopular, not to. say unconstitutional course,—unless, indeed, it could be shown that to accede to it would itself be unconstitutional. It is to- this last suggestion that the Ministry seem to be clinging. In the Lords' debate of Tuesday night every speaker on the side of the Government repeated, almost mechanically, and as if by rote, the same view, that an address to the Queen was proposed to which the Queen could not constitutionally be asked to ac- cede. Lord Derby said plainly that Mr. Disraeli ought to ad- vise the Crown to decline the prayer of the Address (if carried),. and he maintained that the precedent of what Lord Russell did in 1835 was entirely inapplicable. Lord Derby said, " The Crown in the present instance is asked,—not to sacrifice,—not to consent to a suspension of,—prerogative for the purpose of" an Act of Parliament, upon the recommendation of the con- stitutional and responsible advisers of the Crown ; but it is-- asked indefinitely to suspend the exercise of duties which, by Acts of Parliament and the Coronation Oath, it is bound to exercise, until at some period, and in case at some period, Parliament should think fit to legislate, in the sense of the resolutions." Lord Derby is one of those deafest of all persons who have not the •will to hear. If Mr. 'Gladstone- and his colleagues have explained once, they have explained some half-dozen times with the greatest clearness, that they ask the Crown to do nothing at all on the authority of" the resolutions themselves, except permit the introduction
and discussion of a Bill founded on them. The House of Commons is perfectly aware that the Crown cannot waive any independent duty of its own on the sole request of a single branch of the Legislature. They ask the Queen to do no- thing, and to cease from nothing,—they only ask leave to discuss freely a Bill which, if it became law would retrench her present prerogatives. Lord Derby could not have stated more explicitly the blunder which the Opposition have care- fully avoided, than by the description which he gives of that into which, as he imagines, they have fallen. The Crown is not asked to suspend indefinitely the exercise of a single duty. It is only asked to place its interest in certain appointments " at the disposal "—not of the Commons—but of Parliament, i.e., to give Parliament the right to assume that it may deal with them by Bill just as it would with any other interests not belonging to the Crown. And of course, if, as Lord Derby himself admits, the Queen could concede to Parliament the right to legislate immediately, she can concede equally to Parliament the right to suspend immediately, with a view to ultimate legislation. If she can concede the greater right, she can concede the less. If she could allow Parliament to abolish her patronage in the Irish Church altogether, she can allow it to suspend the same. She is not asked to give the Commons alone the power to do either. She is only asked to give the full Legislature the right to do it if they please. How hard pressed the Government are for an argument to show that the address is unconstitutional Lord Cairns' speech proved most of all. Lord Cairns is a man of wide and lucid intellect. He does not fine-draw unless he sees that any large
mode of stating his case would fail. But he rested the unconstitutionality of the address solely on the words "with a view to the purposes aforesaid," in the last resolu- tion, namely, " that with a view to the purposes afore- said, Her Majesty will be graciously pleased to place at the disposal of Parliament," &c. Now, according to Lord Cairns, " the purposes aforesaid" are the suspension of all the patronage of the Crown till the ultimate decision be taken. If, then, ac- cording to Lord Cairns, Her Majesty assents to place her in- terest in the sees and benefices at the disposal of Parliament, " with a view to the purposes aforesaid," she must do so in order to subserve the suspension of patronage suggested in the second resolution, and is so made to assent to it without an Act. A more forced or arduous piece of special pleading from a great lawyer can be scarcely anywhere else on record. The truth is that "the purposes aforesaid" are obviously purposes not decided upon and ready to be carried out, but at present in the stage of mere inception, only proposed to them- selves by the existing House of Commons,—indeed they are prefaced by ",in the opinion of this House." When the Queen is requested to place her patronage at the disposal, not of this House, but "of Parliament," "for the purposes aforesaid," it is obvious that the condition is necessarily implied that Par- liament should be induced to agree with the House of Com- mons. If you place anything at the joint disposal of A and B, for certain purposes which are as yet entertained only by A, it is quite clear that you grant nothing at all unless B is brought to concur with A in the demand. The Queen gives Parliament the right to discuss the curtailment of her pre- rogative, recognizing the expressed opinion of the Commons as a sufficient indication that the curtailment of her preroga- tive in this respect needs discussion, but in assenting to the prayer of the address she does no more. The "purposes afore- said " entertained by the Commons are the ostensible justifi- cations of the proposed discussion. But the Queen in con- ceding to Parliament the right to discuss and adopt " the purposes aforesaid," if it choose, can no more be said to have approved them then and there, than the Speaker in deciding that a member is in order, can be said to have endorsed his views.
The truth is that the Tories are at their wits' end to know how to advise the Queen on an address certain to be voted by a large majority, and which, if declined, will cause a breach between the people and the Crown, while, if acceded to, it will take the heart out of the Tory party. So Lord Derby and Lord Cairns are employed to make a case for the position that the address itself is unconstitutional,—which case even they cannot make plausible. Indeed, Lord • Derby, who ap- parently made a plausible case, did so because he mistook his brief ; and Lord Cairns, who did not mistake his brief, failed to make even a show of plausibility. The truth is that Mr. Gladstone's resolutions are almost pedantically constitutional. Lord Derby, who cannot take distinctions in small matters, attacks with his usual vigour an enemy that does not exist ; Lord Cairns sees and understands his enemy well enough, but finding no weak points in his constitutional armour, he throws dust in the eyes of the spectators instead. We could wish him a more worthy occupation.
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