‘There seems to be an opinion abroad, apparently received without enquiry, that it is a constitutional practice for a Minister retiring from office to advise the Crown as to his successor. Whether the representative of the Crown in this colony has at any time permitted such practice I do not pretend to say, but it is known that on some occasions no such advice has been given or sought, and it is undeniably the fact that nothing of the kind has ever occurred in modern times between retiring Ministers in England and the Sovereign.

‘It will occur to the mind of any person capable of reasoning on the subject, that it would be a logical absurdity for a Minister who has forfeited his position as adviser of the Crown, by the tender of his resignation of office, still to be permitted to advise as to the person who is to be his successor. Having himself failed to obtain the support of Parliament in his Ministerial capacity, how can he be the right person to advise who

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is likely to succeed in securing that indispensable support in the government of the country? Having as Minister passed outside the boundary within which he can be held responsible to Parliament for his advice (for by his resignation he has paid the utmost penalty which Parliament can exact), is he then to advise, without responsibility, on the momentous question of the formation of another Government?

‘For many years after the accession of the House of Hanover the Whigs sought to establish in their party a power of nomination to the office of Premier. The resolute self-will of George the Third broke down this pretension of the great Whig families. Although the prerogatives of the Crown, as sought to be exercised during the long reign from 1760 to 1820, have since been circumscribed and defined in the interest of the popular branch of the Legislature, all modern statesmen are agreed that the right to select the First Minister, absolute, unrestricted, and uninfluenced, belongs to the Crown alone, and that the only party in the State entitled to offer advice in the matter is the Parliament itself. That principle of Parliamentary government, clear and distinct, has come out of the constitutional struggles of two centuries. That principle is stated very concisely, but very emphatically, by a well-known historian, who has himself held high office in the Parliament and the Government of England. I quote from Massey's “History of England during the Reign of George the Third,” vol. iii. p. 213.

‘ “If there is one rule better established than another by the Constitution of this realm, it is this, that the

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Sovereign has a right to choose his Minister, subject only to the approval of Parliament.”

‘So far back as 1812, while the contention for power between the Crown and the Ministers was still going on under the Regency, Mr. Canning, in the House of Commons, delivered himself thus:

‘ “The Right Hon. Gentleman, and those on his side of the House, seemed to consider that the great families and connections of this country had a kind of right to interfere in the nomination of Ministers. He himself, who was so very humble an individual, who could not boast of any of those high connections, and who, perhaps, though unknown to himself, was influenced by those circumstances of his humble rank, did not certainly believe in the existence of any such right or pretension in the aristocracy. He thought that, in the very best spirit of the Constitution, the Crown had exclusively the appointment of Ministers, subject, of course, to the control or advice of a free Parliament.”— [Parliamentary Debates, vol. xxiii. p. 455.]

‘Fifteen years afterwards Mr. Canning asserted this principle in his personal conduct by declining to be a party to carrying out the wish of the King, that he and his colleagues should nominate a peer to the office of Premier in the place of Lord Liverpool. The negotiations resulted in Mr. Canning being authorised by George the Fourth to reconstruct the Ministry; and though Mr. Peel (afterwards Sir Robert), the Duke of Wellington, Lord Eldon, Lord Bathurst, Lord Westmoreland, Lord Bexley, and others refused to serve under him, and though a protest against his assumption

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of the premiership, signed by eight dukes, was presented to the King, threatening their organised opposition, Mr. Canning succeeded in forming the first Liberal Ministry of this century, bringing into the Cabinet Lord Lyndhurst, Lord Palmerston, and Mr. Huskisson. So far from any person advising the King to “send for” Mr. Canning, Mr. Canning was “sent for” in spite of the influence of all the great ruling families.

‘When, in the early part of 1846, dissensions arose in the Peel Administration on the policy of repealing the Corn Laws, and Lord Stanley determined to retire, Sir Robert Peel tendered his resignation to the Queen, and he explained his conduct in these words to the House of Commons:

‘ “While I retained the hope of acting with a united Administration, while I thought there was a prospect of bringing this question to a settlement, I determined to retain office and incur its responsibilities. When I was compelled to abandon that hope (my sense of the coming evil remaining the same), I took the earliest opportunity, consistent with a sense of duty and of public honour, of tendering my resignation to the Queen, and leaving Her Majesty the full opportunity of consulting other advisers. I offered no opinion as to the choice of a successor. That is almost the only act which is the personal act of the Sovereign; it is for the Sovereign to determine in whom her confidence shall be placed.”—[Hans. Debates, vol. lxxxiii. p. 1004.]

‘In 1852 the first Derby Ministry was defeated on their financial policy, and Lord Derby announced their

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resignation in the following terms in the House of Lords:

‘ “Having had a distinct declaration of want of confidence on the part of the House of Commons, and having ascertained that my colleagues unanimously concurred with me as to the only course we ought to pursue, I proceeded to wait upon Her Majesty, and to tender to her, in my own name and that of my colleagues, the humble resignation of our offices. Her Majesty was pleased to accept our resignation; and signified her pleasure, which was acted upon in the same day, to send for and take the advice of two noblemen, members of your Lordships’ House, both of them of great experience and considerable ability—of long practice in public life.”—[Hans. Debates, vol. cxxiii. p. 1701.]

‘The two noblemen alluded to by Lord Derby were the Marquis of Lansdowne and the Earl of Aberdeen; but it is clear that the Queen did not ask the retiring Minister for any advice on the expediency or propriety of seeking the counsel of those statesmen. She simply informed him, not as a defeated Minister, but as a peer of the realm and a Privy Councillor of great weight and consideration, of the course she intended to take. It is only in one or other of these latter capacities that English statesmen are ever asked for advice on the selection of the First Minister, because both Peers and members of the Privy Council are responsible to Parliament for the advice they give, whether in office or not. Persons enjoying either rank, and of high standing from personal services and experience in public affairs, have occasionally been asked for such advice, when they

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neither belonged to the retiring, nor were expected to belong to the incoming, Ministry. This was the case with the Duke of Wellington and the Marquis of Lansdowne in their later years. When Mr. Disraeli resigned in December, 1868, the “Times,” on the following morning, stated that there could be no doubt but that the Queen would seek the advice of Earl Russell in the first instance, on account of his long connection with the Liberal Party and his great experience, though it was equally certain that Mr. Gladstone would be entrusted with the formation of the new Government, as the general election had clearly pointed out the latter statesman as the future Premier. [‘Times,’December 3, 1868.] But Her Majesty sent direct for Mr. Gladstone, who, at the time, was at Hawarden Castle, more than 200 miles from London; and, though the Cabinet Council, at which Mr. Disraeli and his colleagues determined to resign, was held late in the day on December 2, Mr. Gladstone had an audience of the Queen, at Windsor, at 4 P.M. on the following day. Another of the great daily journals spoke of the Queen's relation to the Ministerial crisis in the following words:

‘ “The English system of government does not, as is sometimes fancied, go of itself. It is not an automatic contrivance, nor an engine which a child may feed or tend. To discern the real meaning of popular or Parliamentary contests; to act as the interpreter of the national mind; to select its truest representative; and to give effect to its will, are offices involving grave responsibility and calling for more than ordinary intelligence and judgment. To do these things is part of

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the business of an English monarch. Constitutional Kings and Queens cannot but have, like humbler people, their own political opinions and personal preferences. The high impartiality and the controlling sense of public duty which, amid the changes of party government, have for a generation kept the private feelings of the Sovereign in abeyance, deserve record and honour.”—[Daily News, December 5, 1868.]

‘We know from an unimpeachable source the patriotic view which the reigning Sovereign has always taken of her duty on the occasion of a change of Ministry. The wise and lamented Prince, who was her dearest adviser in life, has told us how scrupulously Queen Victoria guards herself from any personal feeling or any consideration in conflict with the feeling of her Parliament and her people, in selecting her First Minister. Speaking in the House of Lords on the death of the Prince Consort, Earl Russell said:

‘ “I happen to know from the late Prince himself the view he took of the duty of the Sovereign in such a case. He stated to me, not many months ago, that it was a common opinion that there was only one occasion on which the Sovereign of this country could exercise a decided power, and that was in the choice of the First Minister of the Crown. The Prince went on to say, that in his opinion that was not an occasion on which the Sovereign could exercise a control or pronounce a decision; that when a Minister had retired, from being unable to carry on the Government, there was at all times some other party which was prepared to assume the responsibilities of office, and was most likely

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to obtain the confidence of the country. But, he said, a transfer having been made, whether the Minister was of one party or the other, he thought that the Sovereign ought to communicate with him in the most confidential and unreserved manner with respect to the various measures to be brought forward, the fortunes of the country, and the events that might happen — that whether he belonged to one party or another, the utmost confidence should prevail between the Sovereign and the Minister, who came forward in Parliament as the ostensible possessor of power.’—[Hans. Debates, vol. clxv. p. 44.]

‘Earl Russell went on to give the weight of his own opinion on the beneficial effect of this unbiassed and scrupulous conduct on the part of Her Majesty in the working of Constitutional government. He continued:

‘ “I do, my Lords, attribute in great measure to that opinion which the Sovereign held in common with the Prince, the fact that there has been no feeling of bitterness among any party in this country arising from exclusion, and that all parties during these twenty years have united in rendering that homage to the Sovereign which the conduct of Her Majesty has so well deserved, and the country still reaps the benefit of the good counsel which the Prince Consort gave to the Crown.”—[Hans. Debates, vol. clxv. p. 44.]

‘It appears, then, that it is not only the exclusive right, but the duty of the Crown, in view of the public interest, to exercise an independent judgment in selecting the First Minister, and that Her present

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Majesty has uniformly disregarded her own feelings and preferences in the performance of this duty. It is equally clear that it is not the practice for retiring Ministers, as such, to offer or to be requested to give advice on such a grave and delicate subject, and that any such practice would be in conflict with the theory of Ministerial responsibility. This part of the case is very lucidly stated by Mr. Todd:—

‘ “A retiring Minister may, if requested by the Sovereign, suggest that any particular statesman should be empowered to form a new Administration, but such advice should not be obtruded on the Sovereign unasked. Being debarred by his own resignation, or dismissal from office, from the constitutional right to tender advice to the Crown, he can only do so, if required, in the quality of a Peer or a Privy Councillor; being still responsible in that capacity for any advice he may give to the Sovereign.”—[Todd's Parliamentary Government, vol. i. p. 222.]

‘I have stated the case as I find it elucidated by the most trustworthy records and authorities, and I do not believe a single authenticated instance from modern practice in England can be adduced in opposition to the view I have explained. The Governor, as the representative of the Crown, has few duties to perform which devolve exclusively on his function as Governor, and of these few duties the most important are to decide independently when advice is tendered to dissolve Parliament, and to decide independently on committing the executive power to new hands. In calling a Member of Parliament to the service of the Crown, he is

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not—to use the words of the Prince Consort, as quoted by Earl Russell—“to exercise a control or pronounce a decision” in determining the special character of the change, but he is, like Her Majesty, to select the person who, in his judgment, taking into consideration political experience, party relations, capacity for public business, and representative character, is “most likely to obtain the confidence of the country.”’