The Sun.
London, England, 1867-06-06 00:00:00

SPIRIT OF THE PUBLIC JOURNALS.

TIMES.—One of those curious questions which
carry us far back into the history of the Royal pre-
rogative was decided in the Court of Exchequer last
Tuesday. The case arose out of the execution of a
writ against the goods of Lord Henry Gordon
within the precincts of Hampton Court. The entry
of the sheriff's officers for this purpose was treated,
on behalf of the Crown, as an unlawful intrusion
into a Royal Palace, and an information was filed
against them by the Attorney-General. The Court,
however, affirmed the legality of the proceeding.,
though Lord Chief Baron Kelly recorded his dis-
sent from the opinion of his two brethren in an ela-
borate judgment. It is said that no attempt to
execute a writ in Hampton Court had ever been
made before, but this absence of precedents may
well be due to the discriminating hospitality of the
Sovereign. It would be a gross abuse of that hos-
pitality if the inmates of the Palace were to set their
creditors at defiance with impunity, and we can
hardly suppose that her Majesty would allow such
guests to retain their apartments there. It is, there-
fore, of very little importance whether the right of
immunity from civil process does or does not belong
to Hampton Court, and we are rather surprised that
the law officers of the Crown should have consi-

dered it worth while to raise the • point. At the
same time, there is always a certain interest in the
application of old constitution doctrines to modern
facts ani ideas, while the recent discussions on the
validity of martial law amply illustrate the diffi-
culty which sometimes attends this process. Ac- '
cording to the view of the Lord Chief Baron, the
whole burden of proof lies on those who deny the
privilege claimed for Hampton Court. Having
been occupied as a Royal residence at various times
from the reign of Henry VIII. to that of George
11., and being still in the legal possession of the
Crown, it is prima facie exempt from the sheriff's
jurisdiction, although her Majesty does not reside
there. "It is enough that the Sovereign, past or
present, has resided there,. and might come to
reside there again." Even now, all the appoint-
ments in and about the Palace are in the gift of the
Sovereign, the domestics and gardeners are paid out
of the Civil List, a guard of honour and sentinels
are stationed at the gates, and Divine service is
regularly performed in the chapel. All these cir-
cumstances were alleged by the Lord Chief Baron
to show that Hampton Court is a Royal Palace, if
not as truly as St. James's, yet in the same sense as
Kensington or Holyrood—that is, a Palace in the
constructive, though not actual, occupation of her
Majesty. Now, it was held by Lord Ellenborough
that Kensington, ithen inhabited by one of the
King's sons, retained its inviolable character long ,
after the Sovereign had ceased to reside there in
person. It was also held by the House of Lords that
Holyrood was a Royal Palace for the same purpose,
but then it happened that just before the appeal was
heard Holyrood was actually occupiedby George IV.
on a visit to Scotland. The effect of these
authorities, as well as of a dictum cited from Coke
by the Lord; Chief Baron, is by no means con-
clusive in favour of the Crown. As Mr. Baron
Bramwell pointed out, the principle which it is
sought to establish cannot be consistently de-
fined: Were the privilege in dispute indepen-
dent of all considerations as to personal and con-
tinuous residence, it might attach to any dwelling
house in the legal occupation of the Queen, or, at
least, to any Royal lodge or shooting-box in which
it would be possible for her to spend a few days.
Again, were it a strictly local privilege it would
not be defeated though Hampton Court were de-
mised for a term of years, still remaining, of course,
the property of the Crown. On the other hand,
upon this supposition it would follow that process
could be executed in a house, not being a Royal
Palace, which might be rented and actually in-
habited by her Majesty for the time being. The
inference drawn by Mr. Baron Bramwell from these
hypothetical instances appears to be perfectly sound
in the forum of common sense-. It is, that what-
ever immunity the common law may have given
to royal palaces was not in the nature of a terri-
torial exemption, but of a security for the personal
dignity and comfort of the Sovereign. It was con-
sidered unseemly that all the disorder and incon-
venience incident to a seizure or distress should be
permitted in a royal mansion, whether the King
should be actually present or not. To confer a
right of sanctuary on every building in which any
of the Queen's_ predecessors may hare lived, and
which is kept up as a nominal palace, is a very dif-
ferent affair, It is not at all easy to say what it is
that constitutes a palace. Balmoral and Osborne
are not called palaces, though, by virtue of her
Majesty's frequent residence in both, they are doubt-
less privileged places. It is fortunate that Non-
such and Kew have been pulled down, that little
remains of Eltham, that King Charles ll.'s palace
at Winchester has been turned into barracks, and
that the pavilion at Brighton is now used for con-
certs and public meetings. Similar claims of ex-
emption might be multiplied almost indefinitely.
As it is, Hampton. Court and Kensington are pro-
bably the only two doubtful cases. We entirely
agree with Mr. Baron Bramwell that a palace in
which no Sovereign has resided for more than a
century, and which is put to a wholly different use,
is no longer a royal residence. It is proverbially
difficult to draw the line, but, to the Baron tersely

•
remarks, "there may be a line, though I can't say
where; and a thing may have ceased, though I
can't say when." All exceptions, and especially
those which possess an antiquarian value, arc SO
precious in the eyes of a true lawyer as fully to ac-
count for the maintenance of the contrary view,
even were it supported by less plausible arguments.
The fact is, however, that in this instance, as in so
many others, the oracle of law gives no certain
response. The Judges can but reason upon doubt-
ful analogies, or upon grounds which, in reality,
though not in name, are grounds of policy. There
cannot be a greater delusion than the well-known
legal fiction that a rule of law exists applicable to
every state of facts, and has only to be declared
from the bench. There are many contingencies et
daily occurrence with respect to which our law is
really silent, and which, if they should become the
subject of an action, must and will be decided by
judicial discretion, g.,ided, but not governed by
precedents. In matters affecting the Royal
prero-
gative this judicial discretion has ever been, and
must ever be, almost unlimited. The extent of
" that law in case of the King which is now law in
case of the subject" has been a Constitutional Ills'
tcry from the earliest ages, and is not likely to be
ascertained in our own day. The dispensing power,
the oppressive rights of purveyance and impress-
ment in time of peace, and the authority to proclaim
martial law at pleasure were formerly among the
to
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most cherished branches of that " prerogative'
which George 111. was fond of alluding. It would
be idle to argue against the revival of these preten-
sions--pretensions against all of which the Com-
mons never ceased to protest in the worst times,
and of which the last only has been asserted for
many generations. Still the Royal prerogative is
one of those delicate topics which it is unwise to.
force into needless prominence. It is as well that
we should not know exactly what the Queen eau
and what she cannot do, according to the imagi"
nary theory of our Constitution—which of the ar-
bitrary functions assumed by her ancestors is poten-
tially in force, and which has become obsolete by
legal disuse. The Romans counterbalanced the
legal omnipotence on another. We provide against
the same danger by a system of checks which makes
it difficult for any power to be strained to the
utmost. It is not, however, impossible, as the con-
flict between the Crown and the House of Lords on
life peerages, and between the two houses on the
paper duties, may suffice to remind us. The more
these direct issues can be avoided, whether on great
or small questions, the better for the stability of our
institutions ; and if they are sometimes inevitable
on great questions, they should be all the more scru-
pulously declined on small questions.