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'tion sent out from England, with or without the con'sent of the Sultan, although a part of the arrangement 'was that full compensation should be made to the 'Sultan for any loss of revenue he might sustain. . . . 'My Lords, I endeavoured to induce the Cabinet to 'reconsider this determination, and from whatever 'cause the change took place, I am heartily glad that 'that resolution was modified. My Lords, I need 1 hardly say that my lips were closed on this subject so 'long as negotiations were going on. I have heard the 'most extravagant and improbable reasons assigned out 'of doors for my retirement; but now that the matter 'is settled, and that no harm can be done by stating 'what is really an historical fact, I thought it due to 'myself and to your Lordships to avail myself of the 'discretion given to me—as it is always given to an 'outgoing Minister—to 6tate what really happened.'
In the course of the debate Lord Salisbury compared the 'instalments of revelations' he described Lord Derby as having made to the successive disclosures of Titus Oates, and said: 'I would venture to 'point out that there is a great inconvenience in these 'revelations from the interior of the Cabinet. Of 'course my noble friend must treat his own obligations 'in the spirit which pleases himself; but I do not 'know that I should like to announce as broadly and 'palpably as my noble friend has to the world, that 'any person who hereafter serves with him in the 'Cabinet must be prepared to have anything that 'passes, or is supposed to pass, there produced ulti'mately, in spite of the rule which Privy Councillors 'have hitherto observed.' To this Lord Derby replied: 'When a Minister unfortunately feels himself obliged Secresy of Privy Councillors. 295
'to separate from his colleagues, I do not think it can 'reasonably be contended that he is not free to state 'the grounds on which the difference of opinion arose. 'It has been an invariable rule that he should do so; 'and it is quite clear that if that were not the rule, no 'man's reputation when he retired from the Cabinet 'would be capable of vindication from attacks made 'upon it. It is perfectly right that he should suffer 'considerable risk of misconstruction and misinterpre'tation until a time when no public injury would arise 'from that difference of opinion being known; but 'when that time has arrived, he has a duty towards his 'own character and towards the public'1
The necessity for the secresy which is held to be binding on all members of the Cabinet, in their capacity of Privy Councillors, has lately attracted attention from a point of view not purely political. The Lord Chief Baron of the Exchequer (Kelly) had publicly announced the grounds of his dissent from a judgment to which he was formally held to be a party, as a member of the Judicial Committee of the Privy Council, before which an ecclesiastical appeal had been brought. This violalation of the secresy alleged to be incumbent on all Privy Councillors, in their judicial as well as their consultative capacity, gave rise to a vehement controversy, in which the Lord Chancellor (Cairns) took an active share adversely to the Lord Chief Baron, and was the main author of the publication of a new Order in Council, reinforcing the obligation of secresy, which is known as the Order of the 4th of February, 1878. In consequence of this somewhat hostile proceeding, the Lord
Chief Baron addressed a Letter to the Lord Chancellor, which must he taken as a memorable document for the purpose of tracing the origin and development of the obligation of secresy imposed on Privy Councillors in the discharge of all their functions. The historical arguments of the Lord Chief Baron are in fact invincible; and if the stringent obligation of secresy, in judicial matters at least, is to be maintained, it must be supported by a reference to its continual utibity and not by a mere appeal to an imaginary tradition. In his Letter the Lord Chief Baron traces the obhgation of secresy no further back than the Ordinance of the 20th of February, 1627. The fourth clause of this Ordinance is: 'When any three of the Lords are 'assembled in the Council Chamber, all suitors, atten'dants,and others are to avoid the Chamber; and it is 'to be kept private, both for dignity, and that the 'Lords may for privacy confer together before they sit 'as occasion shall be.' The eighth clause is: 'In de'bate upon all business there is to be freedom and 'secresy used. Every one is to speak with respect to 'the other, and no offence to be taken for any unfitting 'advice delivered, but as little discourse or repetition 'to be used as may be, for saving of time; and when 'any Lord speaks at the Board to the Council he is to 'be uncovered; but if he speaks to any other man to 'be covered.' The eleventh clause is: 'In voting of 'any cause the lowest Councillor in place is to begin to 'speak first, and so it is to be carried by most voices, 'because every Councillor hath equal vote there; and 'when the business is carried according to most voices, 'no publication is afterwards to be made by any man 'how the particular opinions and voices went.' Sir
Fitzroy Kelly relates, that on the very day of the date of the Ordinance, the 20th of February, a number of defaulters in the contribution to a forced loan in Essex, by an Order of the day before, were compelled to appear before the Privy Council; and from this time every subject of the realm throughout England was ordered, under various commissions, to contribute to a general forced loan or benevolence; and of th ise, great numbers who refused to contribute were at once imprisoned, under Orders of the Privy Council. The Judges were further compelled to attend the Privy Council, and coerced into an apparently unanimous Report that the King might lawfully levy this money without the authority of Parliament; though some of them afterwards, when the question came before them in open court, declared that they had dissented from the Report, and held it to be contrary to law. At length, by the King's command, many Members of Parliament were compelled to appear before the Privy Council, and were questioned as to speeches which they had made in the House of Commons; and whenever it appeared by their own admission, or by proof adduced before the Lords of the Council, that they had spoken in what was called derogation of the King's prerogative, or against the exaction of forced loans, or the levying of ship-money, they were at once condemned to imprisonment, and some of them were kept in prison until released under the Petition of Right. In fact, Sir Fitzroy Kelly establishes the position that the Ordinance of 1627, on which alone the principle of secresy, as distinguishable from the duties imposed by the Privy Councillor's oath of secresy, rests, was only part of the iniquitous and now confessedly unconstitutional organisation by which King Charles I. for a time succeeded in evading his dependence upon Parliament, and in robbing his people of their property without even resorting to the formalities of any recognised legal usage.1
The main purpose of Sir Fitzroy Kelly's argument, indeed, is to show that, even were the principle of secresy in the Privy Council inviolable in what may be called the consultative aspect of the Council, it is still wholly alien to the spirit of English law and justice to extend the principle to the Council in its judicial aspect; and that such an extension would involve the unrighteous scandal and the practical inconvenience of giving decisions without incurring the responsibility involved in alleging the grounds of them. But much of Sir Fitzroy Kelly's argument serves to explain the political principle of secresy as applicable to the members of a modern Cabinet. When once, as in Lord Derby's case, the Sovereign has relieved the Privy Councillor from the obligations of his oath, it then becomes a mere matter of individual discretion as to how much he shall communicate to the public. Thus Lord Derby might without impropriety have been charged with a breach of discretion or political prudence, or even with disloyalty to his party, hut there could have been no ground for imputing to him a breach of a principle of secresy thus seen to be wholly accidental in the constitution of the Privy Council and the Cabinet.
The mode in which the institution of the English Cabinet has been developed of late, and its internal
1 'A Letter to the Lord High Chancellor upon the late Order in Council of the 4th of February, 1878, by the Lord Chief Baron of the Exchequer,' 1878.