CHAPTER III.

THE MEMBERS OF THE EXECUTIVE.

The Lord Chancellor.

THE lord chancellor is appointed by the Crown on the advice of the prime minister by delivery of the Great Seal, of which he is the keeper, and his office is not determined by the demise of the Crown, He is chosen from amongst the adherents of the party in power, is invariably a member of the Cabinet, and resigns with the Ministry on a change of Government. The appointment of a Roman Catholic or a Jew would certainly be deemed unconstitutional, and is probably illegal under the provisions of the Roman Catholic Relief Act, 1829, and the Religious Disabilities Act, 1846. Otherwise no definite legal qualifications are required; the post is, however, invariably offered to some distinguished member of the Bar.

He is the principal legal dignitary and president of the High Court of Justice; (a) he is not, however, a permanent judge of that court. (b) He is also President of the Court of Appeal, and of the Chancery Division of the High Court of Justice. (c) In precedence (if, as is usually the case, of the degree of baron of Parliament or above) he ranks next after the Archbishop of Canterbury. (d)

The lord chancellor is ex-officio Speaker of the House of Lords, and presides at judicial proceedings on appeal. He is also an ex-officio member of the Court of Appeal, and ex-lord chancellors are also ex-officio judges of that court, but they are not obliged to sit and act, except with their consent, upon the request of the lord chancellor. (e)

(a) Judicature Act, 1873, s. 5.

(c) Ib. 1873, s. 31 (1); Ib. 1875, s. 6.

(b) Ib. 1875, s. 3.

(d) Stat. (1539) 31 Hen. VIII. c. 10, s. 4. See ib. s. 8, if below the degree of baron.

(e) Judicature Act, 1891, s. 1.

He enjoys a salary of £10,000 per annum, and a retiring pension of £5000. He is conservator and justice of the peace throughout England, and all judges of the High Court are selected by him, the lord chief justice, however, being nominated by the prime minister. He appoints county court judges (except within the Duchy of Lancaster, where they are appointed by the chancellor of the duchy), and may remove them for inability or misbehaviour. (ƒ) He is also the patron of all Crown livings under £20 per annum in value, and, on the recommendation of the lords lieutenant, advises the Crown as to the appointment of justices of the peace.

The Lord Privy Seal.

The duties of this office were abolished by statute in 1884. The office itself, however, still remains (though practically involving no duties), and is filled by a member of the Cabinet, who usually occupies in addition some other important post Formerly it was necessary for many instruments, and specially letters patent, to pass under the Privy Seal before they could pass under the Great Seal. Now, by the Great Seal Act. 1884, a warrant under the sign manual, countersigned by the lord chancellor, or a secretary of state, or the lord high treasurer, or two Treasury commissioners, is sufficient authority for passing any instrument under the Great Seal, and for the future no instrument need be passed under the Privy Seal. (9)

The Law Officers of the Crown.

These are the attorneys and solicitors general for England and Ireland respectively, and the lord advocate and solicitorgeneral for Scotland. They are appointed by letters patent, and hold office durante bene placito. They are members of the Ministry, but (except the Attorney-General, who owes his inclusion in the Cabinet to the present (Mr. Asquith's) administration) not of the Cabinet, and vacate their office with the party to which they belon

The attorneys-general in England and Ireland and the

(f) County Courts Act, 1888, ss. 8, 15.

(g) 47 & 48 Vict. c. 30, s. 3.

lord advocate in Scotland are the heads of the bar in their respective countries, and their duties are to represent the Crown in legal proceedings, to conduct Crown prosecutions, and to act as the legal advisers of the various departments. They may stay proceedings in any criminal prosecution (or, it seems, in civil proceedings (h)) by nolle prosequi at their own discretion, without calling upon the prosecutor to show cause, (i) and they have the right to reply in all criminal cases, whether evidence had been called for the defence or not. They may also demand a trial at Bar as of right where the Crown is interested. (k) They are usually members of the House of Commons, and share, in a sense, in the general responsibility to Parliament of the administration as a whole for advice given to the Crown.

By a Treasury minute of the 5th of July, 1895, the salaries of the attorney and solicitor general were increased to £7000 and £6000 per annum respectively, and they are no longer permitted to engage in private practice.

The duties of the solicitor-general are similar but in subordination to those of the attorney-general. When the office of attorney-general is vacant, the full duties of his office devolve upon the solicitor-general. (1)

In certain legal proceedings, e.g. petition for revocation of a patent, the fiat of the attorney-general is necessary.

There is also an attorney-general of the Duchy of Lancaster who represents the Crown in the Duchy Court, and an attorneygeneral and solicitor-general of the County Palatine of Durham, who exercise like functions in the Chancery Court of Durham.

The Chancellor of the Duchy of Lancaster.

This officer is a member of the Ministry and appointed by letters patent. He controls the courts of the duchy, which, since the Judicature Act, 1873, consists only of the Chancery Court, and appoints and dismisses county court judges

(h) See R. v. Evans (1819), 6 Price, 48

(i) See Reg. v. Allen (1862), 1 B. & S. 8.

(k) See Crown Office Rules, 1906, r. 151; Bellamont's case (1700), 2 Salk. 625.

(1) Rex v. Wilkes (1770), 4 Burr. 2527, 2554, 2570.

within the duchy. He is also responsible for the management of the Crown lands within the duchy. His duties, however, in all these matters are discharged by subordinates, and the office is practically a sinecure

The Secretariat.

The office of king's secretary dates from the thirteenth century, and it became customary to appoint two secretaries, who were at first minor officers of the household, acting as the means of communication between the Crown in its relations with the Privy Council and its various committees, and with foreign representatives and subjects.

Down to 1782 there were two secretaries for foreign affairs, one for the northern states of Europe and one for the southern. In 1782 the northern department took over the entire management of foreign affairs, whilst the latter looked after home, Irish, and colonial affairs. In 1794 a secretary of state for war was added, and the management of the colonies was transferred to him in 1801. In 1854 a secretary of state for war was appointed, in whom were combined the offices of the former secretary at war and of the secretary of state for war, whilst colonial affairs were entrusted to a separate secretary of state for the colonies. In 1858 a fifth secretary for India was appointed.

The five secretaries of state are now invariably members of the Cabinet; they advise the Crown in the conduct of their departments, and exercise certain statutory powers. In the absence of any statutory provision to the contrary, any principal secretary of state may perform the duties of any other principal secretary. It was decided in Entick v. Carrington (m) that a secretary of state cannot issue a general warrant for the arrest of any person. He may, however, issue a warrant for treason. (n) Secretaries of state are appointed by the Crown by delivery of the seals, consisting of the signet, lesser secretarial seal, and the cachet. The office of the signet was abolished in 1851 and each department now uses its own seals.

(m) (1765) 19 St. Tri. 1030.

(n) Reg. v. Oxford (1840), 4 St. Tri. (N. S.) 497.

The Government Departments.

Political and Non-political Departments.-The executive business of the country may be classed broadly under two heads: Firstly, matters the administration of which is in the main left to the Crown exercising its discretionary prerogative with the advice of its constitutional ministers, though such matters may be, and in fact frequently are, regulated in part by statute. Such are the administration of the army and navy, the conduct of foreign and colonial affairs, and the like.

Secondly, matters relating to the administration of statutes, or the exercise of powers conferred by statute, in which little or no discretion is left to the administrative heads. Such are the collection and management of customs and excise, and other taxes and duties, the management of public museums and galleries, the granting and registration of patents, the registration of births, marriages, and deaths, the auditing of public accounts, and the like.

It is obvious that the administration of such important matters of either class can only be adequately attended to by means of permanent offices, with an adequate staff of officials, and these public offices or State departments have consequently been created from time to time as occasion demanded, their constitution and the functions of their principal officers being regulated by the Crown by Order in Council or by

statute.

In addition to the distinction arising from the manner of their creation (viz. either by the Crown in the exercise of its prerogative, or by statutory authority) there is this further distinction between the various departments, viz. they are either political or non-political. The most important departments of either class are political, that is to say, their heads are members of the Ministry and retire from office with that body on a change of Government; as members of the Ministry they are almost invariably members either of the House of Commons or of the House of Lords (generally the former), and of the Cabinet. In addition to the Parliamentary head, the political departments have in some cases a Parliamentary and a permanent secretary. At the present time some fifteen

C.L.E.

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