The Sun.
London, England, 1836-05-07 00:00:00

KING'S -BENCH.-(THIS DAY.)

THE SUNG V. THE LORDS OF THE TREASURY.
The ATTORNEY-GENERAL had to shew their Lordships
cause against a rule, by which his Majesty's Court of
King's Bench called on the Lords of his Majesty's Trea-
sury to shew cause why a writ of mandamus should not
issue, directed to them, and commanding them to restore to
its place in the minute book of the Treasury, the minute
made therein on or about the 6th of October, 1826, in
which the then Lords of the Treasury expressed their opinion
that under the circumstances therein stated, a vote should be
sglsmitted to Parliament, granting to Carmichael Smyth, Esq.
ad allowance of 166/. per annum ' • and why the mandamus
should not order the Lords of the Treasury to submit an ap-
plication to Parliament for a grant oh his account in the esti-
mates of the present year. Their Lordships were by
that called upon to order the Lords of the Treasury
to restore the minute, which they, in the exercise of their
power and discretion, and giving the best advice they
could to the Crown, have thought ought to be rescinded, and
a new minute made on their books restoring that grant.
Their Lordsbips were to command the Lords of the Treasury
to make in the estimates an application to Parliament that
there may be a vote in favour of Mr. Carmichael Smyth. By
this rule it is thought that your Lordships are to abdicate
your judicial functions, and to assume the executive and legis-
lative powers of the State.
Lord DENMAN—When was this rule granted ?
The ATTORNEY-GENERAL-7011.Tuesday, 26th April last.
.

I should have supposed that I might just as well have applied
on the part of the Emperor of Russia for a quo warranto,
calling upon the Lords of the Admiralty to shew by what
authority they sent a fleet into the Black Sea.—(Laughter.)
However, I am called upon to show cause against it, and if
the rule is made absolute it will certainly throw upon your
Lordships functions which your predecessors have never
exercised.
Lord DENMAN—Is this the rule you moved for Mr. Lewis ?
Mr. LEWIS-Yes, my Lord, it was obtained this term before
Mr. Justice Williams.
The ATTORNEY-GENERAL-On the Ist of June, 1811, Mr.
Smyth was appointed Paymaster of Exchequer Bills, which
office, as was solemnly determined by the Court of Exche-
quer, he held during pleasure, and was liable to be dismissed
from it any moment without cause. In October, 1826, he re-
ceived a retiring pension of 1661.
Lord DENMAN-We feel ourselves disposed to call upon
Mr. Lewis to show if we have the power to grant this rule.
We cannot, at present, discover the slightest foundation for
this application.
Mr. LEWIS would endeavour to discharge his duty by refer-
ring to the arguments he had used before Mr. Justice Wil-
liams, when he had obtained the rule. He admitted the prin-
ciple that the office was held during the pleasure of the Crown,
but in his opinion that did not touch the present question. It
was for their Lordships to say, on the construction of the Acts
of Parliament to which he would refer, whether Mr. Smyth
had a vested right in this pension, and he would endeavour to
show that, after having been once placed on the Pension List,
the Lords of the Treasury had no power or discretion what-
ever to withhold that allowance from him.
Lord DENMAN—If the Act of Parliament gave the person
that right, the Lords of the Treasury cannot take it away ;
but what feasible right has this Court to call upon any Member
of Parliament to do any particular thing?
Mr. JERVIS-The Act required the Lords of the Treasury
to place this vote on the estimates ; and the name being once
there, it was competent for the Chancellor of the Exchequer
„„, D.pliamant to sivo a reason for with-
drawing it ; but it was not competent for the Lords of the
Treasury to refuse inserting the name on the votes ; and if
they do, this Court can compel them. By the 50th Ceo. 111.
chap. 117, the Lords of the Treasury had a discretionary
power to grant or withhold retiring allowances, and they were
obliged to lay annually. before Parliament a return of the
increase and diminution in that list. The 3d Geo. I V.,
chap. 113, repealed that Act ; and upon its construc-
tion the question would turn. It provided that a sum
out of the salaries of officers should be set apart to form
a superanuation allowance to which so long as the Act was in
force Mr. Smyth had contributed, thereby establishing his
cla'na to that fund. By the 6th section it was directed that
the names of persons receiving the allowance should be an-
nually laid before Parliament, thereby showing that the Lords of
the Treasury had no right to withhold the name of Mr. Smyth.
The Learned Counsel proceeded at some length to argue that
by the construction of the Act the Lords of the Treasury were
obliged to insert Mr. Smyth's name, and had no discretionary
power whatever in the matter. Mr. Sinyth had a legal
right, and his pension not having been voted, he had no
legal remedy but the present application.
Mr. WELLESLY followed on the same side.
The COURT having conferred for some time together,
Lord DENMAN said there did not appear to them to be the
smallest foundation for this application. In order to bring the
case within the Act of Parliament it should be shown what the
Court was required to do. In that it had entirely failed—the
minute of the Lords of the Treasury was revokable the very
day it was made, and it was utterly absurd to suppose that that
Court could call upon any Board either to revise their own
discretion, or restore the discretionary grant which had been
made by a former Board at a different time, and under different
circumstances. There did not appear to the Court to be a
single word in the Act to show anything like a vested right in
the person who made the application, and therefore the rule
must be discharged.