The Sun.
London, England, 1833-11-19 00:00:00

SIR JAMES SCARLETT'S ANSWER.

am of opinion that the Crown cannot by virtue of the
prerogative alone compel any subject to make communi-
cations or disclosures upon oath or otherwise, except in a
due course of the administration of justice. The Crown
may issue a Commission to hear and determine offences
against the law ; and in cases where the Crown is Visiter
of Ecclesiastical Corporations or Hospitals it may visit
by Special Commissioners, as well as by the Chancellor :
but even then the visitatorial power must be called
into action, like any other judicial power, by the
complaint of some party grieved to whom the ordi-
nary means of redress have been refused, or by way
of appeal from some domestic forum which has
exercised its judgment upon a specific complaint.
But I apprehend that a roving Commission to inquire for
grievances, and to compel answers, even in cases where
the Crown can visit by Commissioners, much snore in
cases where it cannot, is clearly contrary to law. As
to Civil Corporations, therefore, I think that they can in
no respect be compelled to make any answer to any Com-
missioners appointed by the Crown touching any of the
matters propounded in the queries, or within the scope of
the Commission. There can be no civil liberty where the
law that protects the rights and enjoyment of property,
and of privileges or franchises, is not administered in a
certain known course. It is a principle of the common
law, which is ever favourable to liberty, that the King
cannot administer justice except in his Courts, and by his
Judges duly established. It is said by Lord Coke that
Courts of Equity exist only by prescription or by statute ;
that the common law is the inheritance of the subject, and
therefore that though the King may by virtue of his prero-
gative constitute a new Court and Judges to administer
justice according to the common law, yet he cannot with-
out the authority of Parliament constitute a new Court of
Equity, or a Court Ecclesiastic. It follows that he cannot
compel any person to make disclosures, even for the
avowed purposes of justice, or the redress of grievances,

except in the established Courts of t quity, or by Courts
administering justice according to the common law.
It is even said by the same bight atr.hority that the
King cannot by lavi appoint Commissioners to inquire
only, and not to determine. This is certain, that by
the common law, which is the' right of the subject, no
man can be compelled to disclose an matter that may
expose himself to peril, except in a due course of justice.
It seems to follow, therefore, that the Crown cannot
L appoint Commissioners for the mere purpose of compelling
disc`Osnrei of any kind. Commissions for Intefiry may be
the source of mO"ch.' er'efeil information furnished volunta-
rily ; and it has been the uSage to issue such Commissions
either under the Great Seal or under tli'e sign manuel in
matters relating to the departments of the Executive
Government which are under the control of the king,
Or to the administration of justice generally; but, in my
opinion, it is not consistent with the law or the liberty of
the subject that Commissioners appointed by the Crown
to inquire into matters of pfoperty or franchise, or any
other matters or grievances of which the King's ordinary
Courts have cognizance, should be endued with a power
of compulsion either for the disclosure of facts or the
attendance of witnesses: The Address of the House of
Commons, as the law now stands, can add nothing to their
validity. It is true that the House of Commons claims a
power to enforce by means of its own privilege the
attendance of witnesses and the production of pApers
and records before its own Committees of Inquiry ; but
it is also true that the House of Commons cannot commu-
nicate that power to the Crown. Besides, the privilege
of the House of Commons is not, like the prerogative of
the King, reducible to any control of a Court of Justice,
nor, perhaps, to any strict definition, and therefore it must
ever depend entirely no the discretion and moderation of
that assembly whether that privilege shall be exercised for
the real benefit of the people, or in a manner wholly in-
consistent with justice or liberty, as it certainly must he
whenever the House of Commons shall assume a jurisdic-
tion which properly belongs to the ordinary tribunals.
The known and lawful manner of inquiry into the mis-
conduct of a Corporation, or into the improper exercise of
its franchises, is by information in the Court of King's
Bench, which can only be grant-d upon some specific
charge; or to redress some specific grievance. But a
Commission from the Crown (and the same may be said
of a Committee of either House of Parliament), for the
avowed purpose of finding out matters of complaint against
every Corporation in the kingdom, if it were armed with
compulsory powers, would appear to me liable to all the
objections which were justly urged against the qua war-
rantos of Charles 11., without even regarding, as they did,
the forms of justice.
W. W. loLLETT'S ANSWER.

I am of opinion that Municipal Corporations are not
compellable by legal process to furnish the information
required by the Commissioners. lam not aware of any
legal or constitutional power vested in the King which
can enable him to compel obedience, on the pert of any
corporate body or it, officers, to Cumtui,sioners appointed
under such a Commission as this. Whatever incormation
on the subject of their inquiries is furnished to them, will
be voluntary on the part of the persons giving it.

MR. W. R. RENNALL'S ANSWER.

In some cases where the King has the power of visita-
tion, he may appoint Commissioners to exercise his office
of ♦isiter. He is the visiter of all Civil Corporations, but
the only place where he can exercise this jurisdiction is in
the Court of King's Bench. The Corporation complained
of is called upon in that Court to show how it makes out
its claim to some specified privilege, or to answer for
alleged misbehaviour, distinctly charged i❑ a proceeding of
quo warrant°. This is the only course by which the
Crown can legally call in question the rights exercised, or
the acts done, by a Civil Corporation. The following
passage appears in Lord Coke's Second Institute, 280 :
—" There were some innovatores in those days that per-
suaded the King (Edward Ist) that few or none of the
Nobility, Clergy, or Commonalty, that had franchises of
the grants of the King's predecessors had right to them,
for that they had no Charter to show for the same, for
that in troth most of their Charters, either by length of
time or injury of wars, and insurrections, or by casualty,
were either consumed or lost : whereupon (as commonly
new inventions have new ways) it was openly proclaimed
that every man that held those liberties or other possessi ins by
grant from any of the King's progenitors, should, before cer-
tain selected persons thereunto appointed, show, quo jure,
quove nomine Nees retinerent, &c. ; whereupon many
that had long continued in quiet possession were taken
into the King's hands, Eo quod nulla tabella constarent."
Sir Edward Coke adds, that, at the petition of the Lords
and Commons for a remedy against the grievance com-
plained of, the statute 6th Mot I. enacted, " that in each
county, until the Court of King's Bench came thither, or
the next coining of the Justices in Eyre, all men should
quietly enjoy their franchises which they had reasonably
used. Here it is to he observed that this good King and
his Coupcil in Parliament, referred the party grieved to a
legit prbceeding, which implieth that a contrary course was
hoiden before." Under this statute (6 Edw. I.) quo war-
rant° writs were issued into all the counties of England to
inquire concerning liberties of whatsoever kind, how they
were held of our Lord the King, " Cujus brevis occasione
omnes Archiepiscopi, Abbates, Priores, Cornites,
Barones, et cateri libere tenentes variis laboribus et ea,-
pensis fueruht pregravati."—(Barrington on Statutes,
109.) These proceedings being complained of by the
Lords Spiritual and Temporal, and the Commons, in
Parliament, as a matter of great rigour and extremity
(although in legal course), the Statute IS Edward Ist
was passed to confirm titles.—( Second Institute, 495.)
The letters pa•ent to inquire into Corporations give an
authority to the Commissioners to inquire into the state
and constitution of Municipal Corporations, and, among
other points of investigation, to inquire into the privileges
of the freemen and other members, and into the nature
and management of the income, revenues, and funds.
These inquiries seem to be as extensive as those which the
selected persons were directed to make in the reign of
Edward Ist. The method prescribed for executing this
Commission by summoning the officers of the different
bodies whom the investigation affects; forcing disclosures
of ride, or of defects of title, by an extra-judicial oath ;
t.ooking for abuses without a specific accusation in legal
form ; and by causing the production on oath, without
any cause depending at the suit of a party interested, of
the muniments and other writings of Corporations ; is
as wide a departure from the ordinary course of law as
the proceeding censured by Sir Edward Coke ; and this
Commission, like the appointment of the "persons se-
lected," wants the authority of an Act of Parliament. The
right of the Crown to grant Commissions is not an unli-
mited prerogative. It is said in Lord Coke's Fourth
Institute, 163, " All Commissions of new invention are
against liw until they have allowance by Act of Parlia-
ment. Commissions of novel inquiries are declared to be
void (statute 18 Edw. 111., c. 1). Commissions to assay
weights and measures being of new invention are declared
to be void, and that such Commissions should not be after
granted (statute 18 Edward 3d, c. 4). In 12 Coke's
Reports, 31, it is reported that Commissions under the
Great Seal were directed to divers Commissioners in
Bedfordshire, Buckinghamshire, ant( other counties, to
inquire of depopulation of houses, converting of arable
land into pasture, &c. ; but the Commissioners should
not have any power to bear and determine the said
offences, but only to inquire of them ; and by colour
of these Commissions the Commissioners returned
presentments into Chancery ; and after, in Tri-
nity Term, 5 Jac., it was resolved by the two Chief
Justices, and by seven other of the Judges, that
the said Commissions were against law; among other
reasons " for this, that it was only to inquire, which
is against law ; for by this a man may be unjustly
accused by perjury and he shall not have any remedy,
for this, that it is not within the Statute 5 Elizabeth
(c. 9, fur the punishment of perjury); also the party may
be defamed, and shall not have any traverse to it." It
seems to the that the Commission in regard to which my
opinion is required is liable to the above objections, and
under the sanction of the preceding authorities I think it
is against law. '1 his Commission does, I think, differ
essentially from the Commission to inquire into the practice
of the Court of Chancery, and from the other Commis
sions to inquire into the state of the law in England and
in the Coloines. It is of the nature of a judicial inquiry,
where privileges, property, the administration of trusts,
and personal conduct are put in question without any suit
or action depending. It appears to me that as the Com-
missioners of Naval Inquiry were appointed by statute
(43 Geo. 111. c. 16), and the Commissions of Inquiry
into Charities and the Management of Charitable Funds
were issued under the authority of Acts of Parliament,
the present Commission also had need of the sanction of
an Act of Parliament.

Query 2. Whether or not (assuming the preceding
question to be answered in the affirmative) the Merchant
Tailors' Company is a Municipal Corporation, or a Cor-
poration of that character, nature, and description as to
be legaly within the scope and power of such Commission ?