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jecting to the creation of corporations within the colony by the act
of the crown without their advice, and also to any arrangement by
which any g"it<m-jurisdiction of the bishops in New Zealand should
receive any authority from the crown. On the other hand, the
archbishop of Canterbury approved of the petition from the New
Zealand bishops, but was of opinion that, since the judgments of
the Privy Council therein cited, 'the qiiasi-judici&l decisions of the
governing powers in the colonial churches could only be regarded as
proceedings " in foro domestico" which ought not to be liable to
be reviewed, on appeal, by the Judicial Committee of the Privy
Council.' Under these circumstances, and considering the diffi-
culties arising out of the decision of the Privy Council in the ease
of the "bishop of Natal, the government had decided to consult
Parliament before any further action was taken. Meanwhile, they
were unable to recommend the filling up of a vacancy in the see of
Nelson, New Zealand, although such vacancy had existed for several
months.

On May 15, the promised Colonial Bishops Bill was introduced. P Colonial
It permitted the surrender of his letters patent from the crown by jJf, P 3
any bishop exercising episcopal functions in any of the British
colonies. It rendered valid ordinary episcopal acts done by any
bishop, lawfully chosen, and consecrated, by the free and voluntary
consent of his clergy and people, without the necessity for any
letters patent, royal mandate, or license. It authorised any bishop
of the Church of England to consecrate, within the United King-
dom, a bishop for the Church in the colonies, or elsewhere beyond
the limits of the United Kingdom, upon receiving a royal license
in lieu of a mandate for that purpose : and declared that no such
mandate or license shall be necessary for any such consecration
elsewhere than within the United Kingdom. All questions of law
respecting the status, rights, and duties of a colonial bishop to be
determinable, where there is no ecclesiastical court, by ordinary
courts of law in the colonies. The remaining clauses of this Bill
related to the relations between the Established Church in the
mother- country and the colonial bishoprics, so far as regards the
performance of episcopal acts or clerical functions by persons
ordained in the United Kingdom, or in any of its dependencies.
Owing to the change of ministry in the latter part of this session,
the Colonial Bishoprics Bill was unavoidably withdrawn. But, on



See the petition, minute of New Bishoprics,' presented to Parliament,

Zealand Cabinet thereon, and the in May 1866, No. 1, p. 1.

archbishop's letter, &c., in the ' Cor- P Hans. I), v. 183, p. 1032.
reppondence relative to Colonial



L L



510 THE ROYAL PREROGATIVE

July 13, the new colonial secretary expressed his general agreement
with the principle of this Bill, and intimated that the government
would be prepared to submit a similar measure to Parliament in the
ensuing session. 1

3. The position of the Church of England in Foreign
Countries.

church of Inasmuch as the whole collective legal powers of a
abroad d bishop of the Church of England, as distinguished from
his spiritual powers, are derived from the crown, in con-
junction with Parliament, it follows that no such autho-
rity and jurisdiction can be granted out of the Queen's
dominions, except as the result of a special arrangement
with the governing power of a foreign country ; and that
the authority of Parliament must be invoked to enable
the crown to dispense with the requirements indispen-
sable to the ordinary appointment and consecration of
bishops within the realm. Thus, in 1786, after the in-
dependence of the revolted American colonies had been
established, an act was passed empowering the arch-
bishop of Canterbury or York, with such other bishops
as they shall think fit to assist, to consecrate citizens or
subjects of foreign states to the episcopal office, according
to the form of consecration in the Church of England.
This act dispensed with the necessity for the royal license
for the election, and of the royal mandate for the confir-
mation and consecration of such bishops ; but it forbad
any such consecration without the royal license having
been first obtained for the performance of the same/
Subsequently, in the year 1841, the provisions of this
Act were extended so as to admit of bishops so appointed
to exercise spiritual jurisdiction over the ministers of
British congregations of the Church of England in foreign
countries, as well as over such other Protestant congre-
gations as may be desirous of placing themselves under



< Hans. IX v. 184, p. 805. ' 26 Oeo. III. c. 84.



IN MATTERS ECCLESIASTICAL. 517

their authority. 8 In 1862, the bishop of Oxford submitted
a Bill to the House of Lords, to authorise the appoint-
ment and consecration of bishops for heathen and
Mahomedan countries, with a view to the spread of the
Gospel among the heathen, and to dispense with the
necessity for any license from the crown,, to enable
the archbishops to proceed to consecrate such bishops.
The Bill was opposed by the lord chancellor, as being
an attempt to * assail and remove the supremacy of the
crown ; ' and because it was necessary, in order ' to
maintain the constitution of the country in Church and
State, that no act should be done by which dignity is
conferred, except under special authority emanating
from the sovereign, as the source of all authority, tem-
poral and spiritual.' Moreover, there was no necessity
for the Bill, as the power and authority required had
been already given by the Aces of 26 Geo. III. and 5
Viet, aforesaid ; and there was no difficulty in obtaining
the license of the crown to proceed under those statutes.
The Bill was accordingly withdrawn.*

In 1861, the bishops of the Anglican Church in New
Zealand, after communication on the subject with the
secretary of state for the colonies, and the attorney-
general for New Zealand, consecrated a missionary-
bishop for the islands of the Western Pacific, without
letters patent, or any mandate from the crown, a prece-
dent which has since been followed, without objection. 11

4. The obligations of the Act of Uniformity.

By the Act 14 Car. II. cap. 4, commonly called the Act of
Act of Uniformity, the use of the 'Book of Common mity^"
Prayer thereunto annexed is made binding upon the
clergy of the Church of England ; and they are ex-



The Jerusalem Bishopric Act, 5 Stat., v. 2, p. 2150, n.
Viet. c. 6, and see the form of license ' Hans. D. v. 168, pp. 223, 234.
from the crown in Stephen's Eccl. u Ib. v. 185, p. 380.



518 THE ROYAL PREROGATIVE

pressly forbidden to make use of any other form or
order than what is prescribed and appointed to be used
in and by the said book. A declaration of assent and
consent to the said Book of Common Prayer is required
to be made by all officiating ministers of the Church,
together with other declarations for the maintenance of
the established religion and government in church and
state. This Act, however, is limited in its operation
to the ' kingdom of England, dominion of Wales, and
town of Berwick-on-Tweed.' v A similar Act was passed
by the Irish Parliament. w

In conformity with the general spirit of liberality,
and increased freedom of action in regard to ecclesi-
astical questions, which characterises enlightened public
opinion at the present day, it would appear that Parlia-
ment is not inclined to insist upon the literal observance
of this statute. Thus, on August 7, 1862, inquiry being
made of the government, in the House of Commons,
whether a certain injunction issued by the bishop of
Oxford to his clergy was in conformity with the Act
of Uniformity, the attorney-general evaded a direct
answer to the question, and inclined to regard the sub-
ject matter of the injunction ' as one that concerned
.the bishop and his clergy, and not the government.' x
Newterms In 1865, pursuant to the recommendations of a
subscript royal commission appointed to consider the terms of
tion. subscription to the articles and liturgy of the Estab-
lished Church by persons admitted to holy orders
therein, which were previously of a very stringent
character, Parliament adopted a new form of sub-
scription, couched in general terms, y professedly in order
to quiet the conscientious scruples of a large .body



T But see the previous Act on the w 17 & 18 Car. II. c. 6.

same subject, of 1 Eliz. c. 2, which * Hans. D. v. 168, p. 1213. But

applies to the whole of ' the Queen's see a valuable note on this point in

dominions,' and which has not been Smith's Parl. Rememb. 1862, p. 180.

repealed. By Act 28 & 29 Viet. c. 122.



IN MATTERS ECCLESIASTICAL. 519

of the clergy, and to admit of a greater latitude of
opinion, in regard to many questions of faith and prac-
tice, concerning which the Church has not pronounced
authoritatively, or upon which she does not consider
it to be of essential importance tnat her ministers
should be entirely agreed/ The Act of Uniformity was
amended in 1871, by the Act 34 & 35 Viet. c. 37,
which directed the use of a revised Table of Lessons,
in lieu of the one previously sanctioned. It was again
amended in 1872, by the Act 35 & 36 Viet. c. 35,
which authorised the use of certain shortened forms
of divine service.

Hans. D. v. 179, p, 963 (arch- 104, 109, for constitutional changes

bishop of York). Ib. v. 180, p. 656 involved in modern legislation upon,

(Attorney-General Palmer). See ecclesiastical questions,
Amos, Fifty Years Eng. Const, pp.



520 THE ROYAL PREROGATIVE



CHAPTER XL

ROYAL PREROGATIVE CONCERNING THE ARMY AND NAVY,

in relation THE next branch of the royal prerogative that will

to the , J , . f

army and engage our attention is that which concerns the main-
tenance and control of the army and navy. The exist-
ence of a military force, of greater or less extent, for
purposes of protection and defence against the enemies
of the state is essential to the well-being of every com-
munity. But ' the navy is the characteristic and con-
stitutional force of Britain ; the army is a new force
arising out of the exigencies of modern times.' 8 Par-
liament has rarely, if ever, objected to increase the
navy, or the militia, for internal security, while the
augmentation of the army has usually been regarded
with jealousy and subjected by the House of Commons
to divers constitutional restraints. b The Crown has an
inherent right to the service of all men to defend the
realm ; and can lawfully impress seafaring men to man
the fleets, and other able-bodied men to defend the
coast or shores. But Parliament has very jealously
watched the exercise of this prerogative.

All military authority and command within the
realm is necessarily centred in the sovereign ; a prero-
gative which, by the declaratory Act 13 Car. II. c. 6,
was expressly confirmed.

Sir A Wellesley (Duke of Wei- p. 143, & c. Rpt, of Com" on

lin^ton), Parl. Deb. v. 11, p. 814. Manning the Navy, 1859. Mem. on

b Clode, Mil. Forces, v. 1, c. 13 ; Army (Militia Ballot) Com. Pap.

v. 2, p. 180. 1875, v. 43, p. 511.

Stephens, Com. Ed. 1874, v. 3,



CONCERNING THE ARMY AND NAVY. 521

The dependence of the army upon the crown, abso-
lutely and without any qualification, is essential to the
safety of the monarchy, and has ever been regarded as
the undisputed right of the occupant of the English
throne. d Nevertheless, at the revolution of 1688, such
limitations were imposed upon this prerogative as have
rendered it impossible that it should be exercised to the
detriment of English liberty. It was declared by the
Bill of Eights ' that the raising or keeping a standing
army within the kingdom in the time of peace, unless
it be with consent of Parliament, is against law.' e

Parliamentary consent to the continued existence of
a standing army is given only for the period of one
year at a time, by a formal resolution of the House of
Commons fixing the number of men of which the army
shall consist. This resolution is embodied in the pre-
amble of the annual Mutiny Act, which recites the
aforesaid provision of the Bill of Eights, and enacts
that ' whereas it is adjudged necessary by her Majesty
and this present Parliament that a body of forces should
be continued for the safety of the United Kingdom,
the defence of the possessions of her Majesty's crown,
[and the preservation of the balance of power in
Europe ' f ] the said force shall consist of such a num-
ber of men. Having declared the assent of Parliament
to the existence of an army, to be composed of a limited
number of soldiers, the Act proceeds to provide for the
discipline of the force by authorising military offenders
to be punished according to military law, instead of by
the slow and complex process of the civil courts.

In time of war ' the crown has absolute power to
legislate for the government of the army, ' g though, as

d See Cox, Inst. Eng. Govt. 594. See charge of Ch. Just. Cockburn,

e Clode, Mil. Fore. v. 1, c. 5. in the Queen v. Nelson and Brand,

1 The words between brackets pp. 69, 87-91. In time of war, the

which were first inserted in 1727, and crown acts out of the limits of its

continued thenceforth until 1868 dominions as regards the Army, by

have been since omitted. Hans. D. virtue of its prerogative. Barwis, v.

v. 191, pp. 326, 557. Keppel, 2 Wilson, p. 314.



522 THE KOYAL PREROGATIVE

we shall presently notice, that power has fallen into
desuetude. In time of peace the crown can only frame
laws and regulations for the government of the army
and navy by express authority of Parliament. Thus,
the articles of war for the discipline and government of
the army are made in pursuance of the annual Mutiny
Act, the first section whereof authorises the crown to
frame those articles. But it is expressly declared that
this supplemental legislation shall be legal only so far
as it is in accordance with the provisions of the Mutiny
Act. h

The first Mutiny Act was passed in 1689. It has
since been renewed every session, with the exception
of the interval between 1698 and 1701, when it was
not re-enacted. 1

In the years immediately following the revolution,
the Mutiny Acts dealt exclusively with the matter of
discipline, and the parliamentary sanction to the con-
tinuance of the army itself was given by resolution of
the House of Commons in committee of supply, deter-
mining the number of men to be employed, and voting
the money required for their maintenance and support.
On two occasions during the reign of William III., the
House of Commons reduced the number of the stand-
ing army by their resolutions in this committee, and
one of these instances occurred at the time when there
was no Mutiny Act in operation^ By modern practice,
the numbers of men to be employed both in the army
and navy are annually fixed by resolutions in committee
of supply, and afterwards included, in respect to the
army in the Mutiny Act, and in respect to the navy in
the Act of Appropriation ; thus obtaining, for the reso-
lutions of the Commons in limitation of the amount of



h Queen v. Nelson and Brand, p. ! Clode, v. 1, pp. 153, 389.
69. "M Viet c. , J . J Hallam, v. 3, pp. 189, 190



CONCERNING THE ARMY AND NAVY. 623

force to be in the hands of the crown, the consent of
the other branches of the legislature.*

It is a direct infringement of the constitution, and a violation
both of the Bill of Rights and of the Mutiny Act, for the govern-
ment to raise more men for the land and sea forces than have been
voted by Parliament. ' It is the practice of the War Office, how-
ever, to regard the number of men voted, not as a maximum number
for any time during the year, but for an average upon the whole
year ; considering that if they made the average correct for the
whole year, the vote of the House had been complied with. 1 Upon
occasions of great emergency the government have assumed the
responsibility of increasing the army or navy beyond the numbers
actually voted, and have afterwards applied to Parliament to make
good the deficiency in the supplies granted for this service. In
1858, when the government of India was assumed by the British
crown, clauses were inserted in the new India Bill to prevent the
use of the Indian army out of India, except upon sudden emergency;
and requiring that, whenever it should be so made use of, the ex-
pense thereof unless ' both Houses of Parliament ' should consent
to the contrary should be defrayed out of moneys to be voted by
Parliament, and not out of the Indian revenues." On November 28,
1867, a resolution was submitted to the House of Commons, by the
government, to authorise part of the revenues of India to be applied
for the ordinary pay of troops chargeable on said revenues, but
about to be employed in the expedition against Abyssinia. This
resolution was agreed to, and was concurred in by the House of
Lords on December 5.

In lieu of the annual Mutiny Act, Parliament passed ,.

A i oi-rv nil * -rx- T n T-T i Discipline

an Act in 1 o7 called the Army Discipline and liegula- and
tion Act, which embodied various customs and rules
which had gradually been adopted. Further regulations

k Clode, Mil. Forces, v. 1, pp. 86, Ib. v. 172, p. 1291. Ib. v. 177, p.

104 Second Rpt. Courts Martial 1821. Smith's Parl Rememb. 1863.

Comms. Com. Pap., 1868-9, v. 12. p. p. 40. Martin's Life P. Consort, v. 4

408. p. 233, n. On the constitutional ques-

1 Sir G. Lewis, Hans. D. v. 165, p. tion of the employment of troops

974. on the Indian establishment in other

m Ib. v. 164, pp. 1481-1493. But countries, see the Rep. of Com 6 , on

see Smith, Parl. Rememb. 1860, p. Mortality of Troops (China). Com.

254, and 1862, p. 39. And Rpt. on Pap. v. 15, p. 11. See recommenda-

Pub. Accts. 1862, Com. Pap. v. 11, tions of Sel. Com e . H. of C. in 1868,

Evid. 976, and Ib. 1864, and 8, Kvid. on employment of native Indian

1009-1029. troops in other dependencies of the

n 21 & 22 Viet. c. 106, . 55, 56, crown, Com. Pap. 1867-8, v. 6.

Hans. D. v. 161, pp. 1007,1696, 2008. Hans. 13. v. 190, p. 359.



524 THE ROYAL PREROGATIVE

were afterwards made, and in 1881 another Act was
passed in which these were consolidated, whilst the
former statute was revised and re-enacted. The Eegu-
lation of the Forces Act and the Army Act of 1881
now include all previous laws and regulations on the
subject. In 1882 these acts were amended by the
Army (Annual) Act, by the Military Manoeuvres Act,
and by the Eeserve Forces Act, all passed in that year.
An act to consolidate the law relating to the militia
was also passed in 1882.

standing It is worthy of remark that the declaration of the

Bills of Eights, as to the illegality of maintaining a
standing army without the consent of Parliament, is
expressly confined to ' the time of peace.' Moreover,
the Mutiny Act, in conferring extraordinary powers
for the discipline of the army, is construed to imply
that, except 'in time of peace,' the enforcement of
martial law upon military men is not illegal. Ac-
cordingly, the royal prerogative, in respect to the em-
bodiment and control of an army and generally for the
defence of the realm in times of rebellion or foreign

o

invasion in time of war, remains unimpaired by these
constitutional restrictions, and is still the same as it was
by the common law. p What that law allowed is, how-
ever, no longer material to enquire, inasmuch as the
monarchs of England, ever since the revolution, have
been satisfied to rely upon the authority of the Mutiny
Act for the enforcement of discipline in the army both
in war and peace, and have been equally dependent at
all times upon the necessity of obtaining from Parlia-
ment, year by year, the supplies required for the
prosecution of any war in which Great Britain might
be engaged. q During the American war, the question
was raised in Parliament whether it was legal to allow



i- Clode's Military Forces of the 1 Sat. Rev. Oct. 25, 1862, pp. 50-
Crown, v. 1, pp. 1-6, 10, 507..



CONCERNING THE ARMY AND NAVY. 525

regiments to be levied and maintained by individuals,
without the sanction of Parliament. The weight of
authority was against the practice, though ministers
inclined to justify it. The principal objection that was
urged was a formidable one, namely, that it is of the very
essence of Parliament to judge of the necessities of
the state, and make provision accordingly ; and that any
measure to that end, without the previous concurrence
of Parliament, tended to supersede its authority and
strip it of its rights/

It is, however, one of 'the ancient rights and liber- The
ties/ of Englishmen to ' have arms for their defence, milltia -
suitable to their condition, and as allowed by law ' ; and
the fundamental laws of the kingdom have repeatedly
affirmed the obligation of every Englishman to have a
knowledge of the use of arms, in order that he may
assist in preserving the public peace. 8 Hence the militia
halTalways been regarded as the constitutional force for
the defence of the realm, and one of the earliest Acts of
Parliament after the restoration of the monarchy in
1660 was for the settlement of the militia upon a con-
stitutional basis. By the Militia Laws Consolidation
Act, passed in 1786, it is declared that ' a respectable
military force, under the command of officers possessing
landed property within Great Britain, is essential to the
constitution of this realm.'*

Upon a similar principle, the formation of Volunteer Volunteer
rifle corps in Great Britain has taken place under the
direct authority of Acts of Parliament, which permit
the sovereign to accept offers of military service from
the people, under certain conditions. 11 The volunteer



r Parl. Hist., v. .19, p. 625. Camp- dified in practice by the Army Re-
bell's Chanc. v. 5, p. 463. gulation Act, 1871. Hans. D. v. 207,

s Smith's Parl. Rememb. 1859, pp. p. 1560.

108-112. Corresp. \Vill. IV. with u Stats. 44 Geo. HI. c. 64; 60

Earl Grey. v. 1, pi 416. Geo. III. c. 1. Clode, Mil. Forces, v.

' Clode, Mil. Forces, v. 1, c. 3 & 1, pp. 86, 333.
1 4. But this principle has been mo-



626 THE ROYAL PREROGATIVE

Volunteer movement, which has since assumed such important
dimensions, originated in the spring of 1859, when
General Peel, the then secretary for war, issued two
circulars, the first of which declared the readiness of
government to accept the service of volunteer corps,
offered under the old Volunteer Act of the 44 George III.,
and the other set forth the circumstances under which
the government was prepared to accept, the same.

In 1862, a royal commission was appointed to enquire into the
condition of the volunteer force, and to report whether any mea-
sures were necessary in order to ensure its stability, and increase its
efficiency as an auxiliary arm of national defence. In reporting
various recommendations for this purpose, the commissioners lay
down the constitutional rule, that ' if it be desirable that any
positive limit should be placed upon the total number of the force,
the duty and responsibility of deciding that question must rest ex-
clusively with the responsible advisers of the crown.' y In con-
formity with this principle, the secretary of state for war shortly
afterwards -issued a circular forbidding the enrolment of additional
volunteer corps. Though in 1873, an Act was passed to provide for
the establishment of a Royal Naval Artillery Volunteer Force,
36 & 37 Viet., c. 77.

MHitaiy Military law is a branch of the law of the land

applicable only to certain acts of a particular class of
persons, and administered by special tribunals. It is
based upon rules for the government of the army and
navy which have been framed or sanctioned by succes-
sive Acts of Parliament. Courts-martial for the trial
of military offences are, therefore, a part of the recog-
nised judicatures of the realm, whose jurisdiction is
confined to the military and naval forces of the crown . w
The Mutiny Act passed in 1877, provided, for the
first time pursuant to the recommendations of a War
Office committee in November 1876, on the Militia
Acts that officers of the militia, yeomanry and volun-
teer corps, should be subjected to the operation of that



* Com. Pap. 1862, v. 27, p. 9G.

" Forsyth, Const. Law, pp. 208, 210.



CONCERNING THE ARMY AND NAVY. 527

Act, and of the Articles of War not only when em-
bodied and out for training, but at other times. x

Such being the well-ascertained rights of the crown



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