1863. DICKSON v. VISCOUNT and Others. fendants towards the plaintiff, but, on his evidence, quite the contrary appeared to have been the case. On the 9th April, 1857, the Earl of Wilton was sued, by COMBERMERE One of the tradesmen who had supplied the mess "list," for a very considerable sum, which he had to pay; and it was suggested that this was the cause of a revengeful feeling on his mind towards the plaintiff. On the 30th April, the plaintiff stated he was sent for again by Lord Combermere, who, he said, showed quite a different tone, and said to him angrily, "You have allowed your Colonel to be sued, and must resign;" from which it was suggested and sought to be inferred, that, at this time, the Earl had seen Lord Combermere, and influenced his mind against the plaintiff; who stated that, at this interview, Lord Combermere pointed to the papers which had been sent in upon the subject, and said he "could make nothing of them;" from which it was suggested, and sought to be inferred, that he had taken a hostile resolution against the plaintiff, without due inquiry, or any care to ascertain the merits of the case (a). (a) As already stated, by the law, there is a discretionary power of removal, and therefore no inquiry would be strictly necessary; and although no doubt the concurrence of either the Lord Lieutenant or the Secretary of War in the resolution to effect the removal of the Lieutenant-colonel, without any inquiry at all, would be evidence of mala fides (and it was so put on the part of the plaintiff); yet it is to be observed that no judicial inquiry being legally necessary, any such inquiry as might reasonably satisfy the mind of any honest man would be sufficient to negative any suggestion of mala fides; and that was all that would be necessary to show either on the part of the Lord Lieutenant or the Secretary of War, supposing the latter to be liable at all; as to which vide ante. And in the first instance, as to the Lord Lieutenant, it would not be necessary that he should adopt any particular course of procedure, provided he took such means to satisfy his mind as an honest man ought naturally and reasonably take in such a case. Long ago it was laid down that there are two species of procedure, the natural and formal, and that the former only requires natural justice. "Sont deux powers et process, s. potencia ordinata et absoluta: ordinata est come ley positive come certein ordre; sed lex natura non habet certum ordinem, sed per quemcunque modum On the 3rd May, the Earl and Lord Combermere went And when evidence is necessary it is only a rule of positive law, founded on another rule of positive law (that the evidence shall be oral), which requires that it shall be in the presence of both parties. All that the law of England deems of the substance of natural justice, is, that both parties shall be heard. This it does deem essential, and thus, as a general rule, summons and hearing are necessary before adjudication (Read v. Wilmot, Vent. 220), especially in all cases of disfranchisement, dismissal, deprivation, or the like; King v. Chalke, Ld. Raym. 225; 4 Mod. 33; Bagg's case, 11 Co. 93. "And so, in all cases of judicial convictions, (per HOLT, C. J.,) of common right, the party ought to be summoned, if possible, that he may have an opportunity of making his defence, and it is abominable to convict a man behind his back;" Q. v. Dyer, 6 Mod. 41. "It is against the law of England that a man should be condemned without notice to make his defence;" King v. Gregg, 8 Mod. 3. "And it is contrary to natural justice that a man should be degraded or deprived without being heard;" King v. Chancellor of Cambridge University, 2 Ld. Raym. 1334. This is all that has been held necessary, even as regards domestic or inferior jurisdictions where there are legal rights and judicial duties. This, however, was not a case of that kind, for there was no legal right or status, and no judicial function or duty. veritas scire poteret, et ideo dicitur processus absolutus; et a lege naturæ requiritur que les parties sont presents (ou que ils sont absentes per contumancy) et examinatio veritatis." (Year Book, 9 Edw. 4, c. 15.) So in Bracton, all that is laid down as necessary to justice, is, reasonable summons and diligent examination of the truth (De Legibus, lib. iii.); that is, in substance, that, according to the law of England, though its own procedure is regular and formal, there may be procedure perfectly right and just, which is not according to its forms, and is only in accordance with natural justice, which requires no more than that the parties should have an opportunity of being heard, and should be heard, and that there should be a real endeavour to elicit the truth. It is not anywhere laid down as essential to natural justice that the parties should be heard in each other's presence, or adduce proofs in each other's presence; and though the latter is according to the law of England, the former is not always so; and there are many cases in which the hearing of the complaint is ex parte, though if it came to a trial and a question of disputed fact, the evidence is taken by the common law of England in the presence of both parties; because it is oral evidence, and it is not according to the genius of our law to have written evidence. The statements of the parties, however, are written, and are only communicated to each other in that form; and if they are admitted, there is no need of evidence. All the cases where it has been 1863. DICKSON v. VISCOUNT COMBERMERE and Others. 1863. DICKSON v. and Others. to the War Office, and saw General Peel, then the Secre required that the party should have VISCOUNT received a summons, and have had COMBERMERE time and opportunity for being heard, have been either when the office from which the party was dismissed was a freehold, and where the power of dismissal was not discretionary, but for cause. In R. v. The Burgesses of Ipswich (2 Ld. Raym. 1232), the defendants had omitted to state in their return that the recorder was by their charter an officer ad libitum. In R. v. The Mayor of Orford (Salk. 428) there was no allegation that the defendants had determined their will. It is clear law that if an officer, civil or military, is appointed in legal language ad libitum, he is removable without any summons or hearing; R. v. The Mayor of Stratford-on-Avon, 1 Lev. 291. The utmost that could be expected from persons in the position of the Lord Lieutenant and Secretary of War, in a case purely discretionary, would be that they should adopt such reasonable means to ascertain enough of the facts to enable them to give a judgment in the case. And this might be according to very ancient principle and precedent, by simply hearing the accused party himself, just as, under the statute of Elizabeth of "Charitable Uses," the Commissioners were empowered to inquire by all reasonable means. See Duke on "Charitable Uses." Even assuming that the Lord Lieutenant and the Secretary of War had decided wrongly, surely the proper recourse would be to the Crown as head of the Army, just as it would be to the Crown as Visitor of a Royal college or hospital. Thus in the domestic forum, as it is called, of visitatorial jurisdiction, "the merits, the justice, and the regularity of the decision cannot be entered into in an action; the proper mode of impeaching it is by appeal to the visitor; R. v. Grundon, Cowp. 320. The king's courts, if the college does not exceed its jurisdiction, have no cognizance, no superintendence. But the visitor is the only person to be applied to, and, moreover, his judgment is final. He does not proceed by the rules and forms of the common law, but he suffers a party allegare non allegata, et probare non probata, and decides entirely upon the merits. Therefore the expulsion by the master and fellows must be taken by everybody to be a right sentence, until avoided or set aside by the visitor, who is sole judge. So with respect to sentences of the ecclesiastical courts, the temporal courts must consider them as final until reversed. In this case expulsion is a matter entirely of their own jurisdiction; the visitor might have proceeded upon the contempt and misbehaviour subsequent to the original offence. There is an end of all discipline, if this expulsion might be overturned * * * without taking the proper course of applying to the visitor." (Ibid. p. 322.) If there were any right to, or estate in, the office, no dismissal could take place without due inquiry, and reasonable time and opportunity to answer the charges of misconduct. No person is to be tary of War, on the subject of the removal of the plaintiff (a). prejudiced in his legal interest without having an opportunity of explaining his conduct, and of showing cause why persons having a discretionary power should not exercise it to his prejudice; Bagg's case, 11 Co. 93, 99; R. v. Gaskin, 8 T. R. 209; R. v. Benn, 6 T. R. 209; Harper v. Carr, 7 T. R. 270; R. v. Ford, 12 Mod. 453; R. v. Simpson, 1 Str. 44. All these cases of removal, however, here cited, are cases where the party was removable for cause, not at discretion. And no doubt the law is similar in any case where there is anything in the nature of a judgment, as where a bishop issues a requisition to a rector or vicar to nominate a curate on the ground of negligence. In such a case (Capel v. Child, 2 C. & J. 558,574), Lord LYNDHURST says, "It is against every principle of justice, that a judgment should be pronounced not only without giving the party an opportunity of adducing evidence, but without giving him notice of the intention of the Judge to proceed to pronounce judgment." So, a summons and hearing are necessary, though not, in terms, required in any case in which a judicial function is to be discharged; Painter v. The Liverpool Oil Gaslight Company, 3 Adol. & Ell. 433; R. v. Wilson, Id. 817, 826; R. v. The Justices of the West Riding of Yorkshire, 7 Adol. & Ell. 583, 592; DE GREY, C. J., in Fisher v. Lane, 3 Wils. 297, 302. In Doe d. Earl of Thanet v. Gartham (1 Bing. 357), it was (a) See note (a), held that the visitors of a school must summon the master before they could determine his interest. The office of schoolmaster, &c., may either be a freehold or an office at will, as was the office of townclerk in Deighton's case; Sir T. Raym. 188; 1 Vent. 77; Sid. 461. If it is an office of uncertain duration, it is not, therefore, for life, unless the party misconduct himself. An office to be held as long as the party shall conduct himself properly is a freehold, but not where it is durante bene placito. The power to remove ad libitum exists clearly where the office is held durante bene placito. In Com. Dig. "Franchises" (F.32), it is said, "Generally, an officer shall not be removed without cause, though the charter says, generally, that he may be removed." But that means an officer in the legal sense of a freehold office, for which an assize would have lain; per LYNDHURST, C. B., Wilkinson v. Malin, 2 C. & J. 650. But it is enough in such a case, even on mandamus, for defendants to return that they have removed him by the exercise of their sound discretion. And if the defendants, or the Crown, had a discretionary power, it would not be subject to the control by the opinion of the jury. Even where there is a clear judicial duty to "hear and determine"-as in the case of justices, whether sitting singly or at sessions -the remedy for refusal or neglect to hear is (unless there is any imputation of corrupt or improper post, p. 554. 1863. DICKSON บ. VISCOUNT COMBERMERE and Others. 1863. DICKSON v. and Others. On the 4th May, Lord Combermere, as Lord Lieutenant, has been held necessary, it has never been held necessary that the party should be heard in the presence of an accuser or prosecutor, supposing there to be any; nor, indeed, is it necessary that there should be any. In the case in which the doctrine of law as to the necessity for hearing a man before depriving him of a freehold office was carried furthest,-that of the parish clerk, dismissed for drunkenness, R. v. Smith, 5 Q. B. Rep. 614—it was not said by the Court that it was necessary, in any case, to do more than to hear the party, informing him, of course, of the nature of the charge or complaint against him. It is laid down in that case, indeed, that the dismissal may proceed on personal knowledge, provided only there be the opportunity of explanation; and of course it must be immaterial how the knowledge is derived, whether from personal observation or from accusation; and even though it may be necessary to justice that the accusation should be made known, it does not appear to be necessary that the accuser should be disclosed, though in this instance it is not necessary to enter into that, for it appeared on the plaintiff's own evidence that he was told the Earl of Wilton had made complaints or charges against him, and it did not appear to be any part of his case that he did not know the nature of the accusation or the names of his accusers. It was no more required by substantial justice that he should hear them make any statements, than that he should not be asked any questions, which motive) not criminal information but a mandamus. "The law is VISCOUNT clear, and the question is, have the COMBERMERE sessions heard this appeal or have they not? If they have already heard the appeal, then this Court will not interfere; but if they have not done so, this Court will grant a mandamus to compel them to hear it." On this the question is, whether the error is one which may be productive of substantial injustice to either party. And all that appears to be necessary even for a judicial hearing, is, that both parties should have been fully and fairly |