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

SPIRIT OF THE PUBLIC JOURNALS.

TIMM—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 list
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
p.,1„„. nn ;nfnrmation was filed
against them by the Attorney-Genera . Inc 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 and 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 priced 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, then 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 occupied by Gecrge 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 panciple 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 nurse,
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 13ramwell 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 iu 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 have 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 IL'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, a 8 the Baron tersely

• remarks, " there may be a line, though lan t „,
where; and a thing may have ceased, thong/Ili
can't sa3, when." All exceptions, and esPeela
those which possess an antiquarian value, are
precious in the eyes of a true lawyer as fully to.ae-
count for the maintenance of the contrary view
ts'
tn
even were it supported by less plausible argue.ll
The fact is, however, that in this instance, as in fa
many others, the oracle of law
doh.
response. . The Judges can but reason upon
-11 reality,
ful analogies, or upon grounds which,
though not in name, are grounds of policy.
cannot be a greater delusion than the well-kn°,o
legal fiction that rule of law exists applicable,
every state of facts, and has only to be dec.larco,
from. the bench. There are many contingencies is
daily occurrence with respect to which our
really. silent, and which, if they should become the
subject of an action, must and will be decided bi
judicial discretion, gs,idcd, but not governed
01.
gives no certari,
.precedents. In matters affecting the Royal Prerna
gative this judicial discretion has ever been, 3'of
must ever be, almost unlimited. The ext,ent. in
" that law in case of the King which is now laW s..
case of the subject" has been a Constitutional
tery from the earliest ages, and is not likely to I.v
ascertained in our own day. The dispensing P°t.!
the oppressive rights of purveyance and iinPrie-.0,
ment in time of peace, and the authority to proc'ultihe
martial law at pleasure were formerly amon,' to
most cherished branches of that " prerogative „Id
whi▪
ch George 111. was fond of alluding. It
be. i▪ dle to argue against the revival of these Pr,e,,
mons—pretensions against all of which the
mons never ceased to protest in the worst t0n,17.,,
and of which the last only has been asserted tei's
many generations. Still the Royal prerogative to
one of those delicate topics which it is unwise t
force into needless prominence. It is as well tha
we should not know exactly what the Queen
''eai.
llri
and what she cannot do, according to the 1111`'
nary theory of our Constitution—which of the
ar-
bitrary functions assumed by her ancestors is P°tev.
b
tially in force, and which has become obsolete
legal disuse. The Romans counterbalanced !bde
t
legal omnipotence on another. 'We provide agaln-ses
the same danger by a system of checks which 1113, 40
it difficult for any power to be strained. t°
utmost. It is not, however, impossible, as the e°oo
filet between the Crown and the House of LordsAe
life peerages, and between the two houses on wre
paper duties, may suffice to remind us. The ra°,t
these direct issues can be avoided, whether on rg
Our
o r small questions, the better for the stability °.f
institutions ; and if they are sometimes inevita
on great questions, they should be all the more scru-
pulously declined on small questions.