Questions to law officers. k in the House of Commons.' j Since this letter was written, the King's Advocate-General, though still holding office during pleasure, has ceased to be accounted as a political functionary, and is therefore not regarded as being eligible for the House of Commons. He is in a similar position in this respect to the Master of the Rolls, who, as we have seen, though not legally disqualified, is no longer required or expected to find a seat in Parliament. It therefore rests with the Attorney and SolicitorGenerals, and the other officers above enumerated, to represent the legal element of the administration in the popular chamber. It is customary for members to address questions to the law officers of the crown in the House of Commons, for information upon legal points, arising out of measures before Parliament, or relating to matters of public interest. But it is not imperative upon these functionaries to reply to such questions. They are the legal advisers of the Government, and in that capacity are confidential officers, and 'nothing could be more inconvenient' than that they should be liable to be interrogated by all members who might desire to be enlightened on a point of law." But within reasonable limits, and according to the discretion of the law officers themselves, the practice is attended with considerable advantage to members, and to the public generally. On March 30, 1854, the Attorney-General was invited by the leader of the House of Commons (Lord John Russell) to reply to a question put by a private member upon a point of international law, 'so far as he thought it consistent with his duty to do so,' it being 'obvious that it would be very improper for members of the government to give answers to questions which might become the subject of controversy in the courts of law.' Whereupon the AttorneyGeneral gave the information required." p. 611. J Stapleton, Canning and his Times, torney-General), Hans. Deb. vol. clxxxv. p. 1334. And see ibid. vol. clxxxvii. p. 1493. Mirror of Parl. * See post, p. 703. 1 See ante, p. 263. m Sir Roundell Palmer (ex-At 1831-2, p. 3523. n Hans. Deb. vol. cxxxii. pp. 62-65. Accordingly, it is not unusual for the several law officers of the crown above mentioned to reply to the enquiries of members in the House of Commons for information upon points of law arising in debate°—or with a view to determine the necessity for additional legislation upon a particular subject-or to explain the legal effect of certain provisions in a Bill before the House -or in regard to a legal question of interest to the whole community' or as to the legality of the conduct of public functionaries in particular cases." The House should not require from crown law officers an opinion on matters of policy, but should simply ask for information as to matters of fact. Neither should they be called upon to define beforehand a point which is determinable by a judge and jury," or which is about to be brought before a legal tribunal. Finally, it should be understood that legal information given to the House by the crown officers merely expresses their 'individual opinion," and that it cannot be received as conclusive authority, however much it may be entitled to respectful consideration.* On July 3, 1868, an Irish member moved in the House of Commons the adoption of an abstract resolution to declare that a writ of error should be issued in criminal cases as a matter of right and not of grace. The motion was aimed at the Attorney-General for Ireland, by whom the contrary doctrine had been asserted upon a recent occasion; and the mover severely censured that officer for his assumed erroneous construction of the law. The Irish AttorneyGeneral vindicated his conduct upon the legal question, and being sustained by the Attorney-General for England the motion was withdrawn.y The Lord-Advocate is charged with the conduct of the Scotch legal business of the crown in the House of Commons • Hans. Deb. vol. clxxxv. p. 1140. PIbid. vol. clxxxvi. P. 902. • Ibid. vol. clxxxviii. p. 608. Mirror of Parl. 1839, p. 4212. Mirror of Parl. 1833, p. 3746; ibid. 1834, p. 3399. Hans. Deb. vol. clxxxv. p. 1331. u Ibid. vol. clxxxviii. pp. 542, 543. Ibid. vol. cxc. pp. 126, 127, 515. business. Ministers for Scotland. relating to Scotland. He is sometimes assisted by the Solicitor-General for Scotland; but it rarely happens that both these officers have seats in Parliament together. The Home Secretary, as a Cabinet minister, is directly responsible to Parliament for all Scottish affairs, but he is advised and assisted by the Lord Advocate, who acts to a partial extent as an under-secretary of state for that part of the United Kingdom." There has been for several years past a growing desire for some change in the position and number of the members of the administration on behalf of Scotland. These consist, at present, of the Lord Advocate, and of a junior Lord of the Treasury," with the help of the Solicitor-General for Scotland, when he may happen to be a member of the House. During the last half century the progress of Scotland in wealth and population has been most remarkable, and unparalleled in any country of the Old World. Under such circumstances it is natural that additional facilities for transacting Scottish business in the House of Commons should be required. On June 15, 1858, a motion was made in the House in favour of the appointment of a Secretary of State for Scotland, to perform the political duties at present assigned to the Lord Advocate. Being opposed by the leading members of the Government and of the Opposition the motion was negatived. On June 3, 1864, a motion was made for the appointment of a select committee to enquire how far the number of the members of the administration charged with the conduct of Scottish affairs, and having seats in Parliament, is commensurate with the requirements of that part of the United Kingdom. This motion obtained few supporters, and after a brief discussion was withdrawn.d The Lord Advocate appointed by the Derby ministry in July 1866, having failed to get re-elected, resigned office. His successor, * See post, p. 710. Hans. Deb. vol. excii. p. 436. See a debate in the House of Lords, on April 6, 1854, upon a motion in favour of the appointment of an additional Secretary of State for Scotland, a larger representation in the House of Commons, and the restoration of the ancient Palace of Holyrood. After a short debate, the previous question was put thereon, and negatived. Ibid. vol. cxxxii. pp. 496-522. Ibid. vol. cl. pp. 2118-2150. a Ibid. vol. clxxv. pp. 1168-1199. however, was unable to get a seat in the House until December 1867. Meanwhile great inconvenience was occasioned. On March 22, 1867, a Scotch member enquired of the Home Secretary whether any changes were contemplated in the management of Scotch business in the House; adding that there was a growing feeling in Scotland in favour of the appointment of an under secretary of state in the home department to perform the political functions of the Lord Advocate, leaving to the latter the professional duties. In reply, the Home Secretary (Mr. Walpole) admitted that both in and out of the House there was an increasing desire 'that some civilian in the shape of an assistant or under-secretary should be the medium of communication with the people of Scotland instead of the Lord Advocate' and promised that the matter should be attentively considered by the Government. He also confessed that he was unable to conduct Scotch legislation without the aid of the Lord Advocate; although for the present the Scotch members could avail themselves of the services of the Scotch Lord of the Treasury on all such subjects, whilst out of the House the Lord Advocate would continue to communicate with them. On June 20, however, Mr. Gathorne Hardy, who had succeeded Mr. Walpole as Home Secretary, intimated that 'he did not think there was a sufficiency of business to render necessary the appointment of a distinct undersecretary of state for this particular purpose.' Agreeing that 'it was a great misfortune' that the Lord Advocate should be without a seat, he hoped that at some time Scotland would do him the justice to give him one.' Until then, the Scotch Lord of the Treasury would do his best to compensate for his absence. Early in the following session, one of the members for the English borough of Thetford retired, and the Lord Advocate was elected in his stead.h of Scotch It has long been the practice for Scottish members in Meetings the House of Commons to meet together, occasionally, members. during a session, to discuss, in a friendly and confidential way, all questions pending in Parliament, which affect the interests of Scotland. They are thus enabled to discover points of difference, and to arrive at a mutual agreement upon such measures. They then communicate their views, in an informal manner, to the Lord Advocate, who, without pledging himself to any particular course, is generally materially influenced by the opinions thus See ante, p. 237. Hans. Deb. vol. clxxxvi. pp. 397, Ibid. vol. clxxxviii. p. 167. Complaints against ministers. expressed. Sometimes, the Lord Advocate will himself convene and preside at a meeting of the Scotch members, for a similar purpose. It is indisputable that the harmony and success of legislation for Scotland has been materially promoted by these conferences.1 III. The responsibility of Ministers of the Crown to 1. IN MATTERS OF COMPLAINT AGAINST PARTICULAR MINISTERS. Notwithstanding the modern rule of parliamentary government, whereby responsibility is attached to the particular whole administration for the acts of the several members of which the same is composed, the ancient rule that 'the constitution of this country always selects for responsibility the individual minister who does any particular act continues to hold good, and is directly applicable in cases of personal misconduct, for which the collective administration decline to be answerable. k The growth of the principle of collective ministerial. responsibility was, as we have seen, very gradual, and its entire acceptance as a constitutional dogma of but recent date. So lately as in the year 1806, Mr. Fox, when Secretary of State, repudiated the notion of considering the whole Cabinet to be responsible for every ministerial act, claiming that there was a greater security against wrong doing in holding each particular minister directly if not exclusively responsible to Parliament and to the country for the management of his own department. But the fallacy of this position was exposed by Lord Castlereagh, who showed that the proceedings of the House of Commons in regard to the Partition Treaties, in 1698, proved that even at that early period all the prominent members of the ministry were equally held iSee Hans. Deb. vol. clxxv. pp. 1173, 1179, 1197, 1490. Ibid. vol. clxxviii. p. 1571; vol. clxxix. p. 1199; vol. clxxxi. pp. 510, 512. Earl Grey, in Parl. Deb. vol. xviii. p. 1075. See ante, p. 109. |