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Secresy of Privy Councillors.
'to separate from his colleagues, I do not think it can 'reasonably be contended that he is not free to state 1 '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 be 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 utility and not by a mere appeal to an imaginary tradition. In his Letter the Lord Chief Baron traces the obligation 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 these, 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 iu 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 th ir 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 whi ;h 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, but 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.
Relation of the Sovereign to the Cabinet. 299
constitution at the present moment, having been explored, it now remains to consider what is the true constitutional attitude of the Sovereign towards the Cabinet Ministers, so far as that attitude can be discerned from a careful study of the most recent history. It happens that not only do the reigns both of William IV. and her present Majesty supply copious illustrations of the position relative to each other of the Sovereign and the Ministers of the Crown, but in the case of both these Sovereigns documentary evidence of an unprecedented sort is in existence, from which the historical inquirer is able to ascertain what was the view of their constitutional relations which these Sovereigns severally have theoretically held, and, to some extent at least, practically acted upon.
The relations of the Sovereign to the Ministers of the Crown are indicated, 1, in the mode of selecting those Ministers, 2, in the mode of dismissing them, 3, in the limits of intervention in the official conduct either of the Ministry as a whole or of individual Ministers, and, 4, in the independent action of the Sovereign, with little or no reference to the concurrence, co-operation, or even the knowledge, of the Ministers.
1 2. It is not easy in theory to impose any bounds on the liberty of action of the Sovereign with respect to the selection or dismissal of Ministers. On the one hand, it could not be expected that the Sovereign should continue to engage in amicable correspondence and even incessant communication with a Minister who, on whatever grounds, had rendered himself personally odious; nor, on the other hand, could the Sovereign obtain any advantage by retaining in his service a Minister who commanded no confidence