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in regard to the levy, direction, and maintenance of a
military force for the protection and defence of the
empire, it remains to consider how far the Houses of
Parliament are constitutionally competent to interfere
therein.

We have already seen y that the control of the army Responsi-
and navy was the last of the prerogatives to be surren- ministers
dered into the custody of responsible ministers. Even ^trol of
of Jate years there have been those who have con- the army
tended that the administration of the military and
naval forces of the kingdom should remain altogether

o o

in the hands of the executive ; without any interference
with the same, by either House of Parliament. 2 But
sound doctrine forbids a distinction to be drawn be-
tween the exercise of the royal authority over the army
and navy, and over other branches of the public ser-
vice ; upon all alike it is equally competent for either
House of Parliament to tender its advice, and there can
be nothing done in any department of state for which
some minister of the crown is not accountable to Par-
liament. Were an exception to be allowed in the case
of the army and navy, it would necessarily follow that
the responsibility for their management would fall upon
the sovereign directly ; but this would be contrary to
the constitutional maxim which declares that the king
can do no wrong, and is not personally amenable to
any earthly tribunal whatsoever.* It has also been
suggested that the coinmander-in-chief, and not the
advisers of the crown, should be held singly responsible
for all acts of military administration. But, as Lord



* Hans, D. v. 232, pp, 1401, 2019, Hans. D. v. 75, p. 1289. Clode,

v. 233. p. 817; Act, 26 & 27, Viet. Mil. For. v. 1, p. 84.
c. 65, . 21. 40 Viet, c. 7, . 2. See ante, p. 263.

y Ants, p. 121.



528 THE ROYAL PREROGATIVE

Grey pertinently remarks, this would not materially
lessen the inconvenience.

com- ' The holder of that office would stand in a most

oTtheT unsa fe position, if he could not depend upon the sup-
forces, port of the ministers of the crown in case of his measures
being questioned in Parliament ; and they cannot be
expected to give this support unless the officer who
trusts to it communicates with them in the performance
of his duties, in such a manner as to enable them to
guard against his taking, or omitting to take, any step
for which they will not be prepared to defend him.' b
The mismanagement of our forces during the early part
of the war withEussia in 1854-5, evinced the necessity
for a more direct and undivided responsibility than had
previously been recognised in the conduct of interests
of such importance to the security of the empire. On
the other hand, the advantages accruing from con-
stitutional oversight on the part of the House of
Commons, into the manner in which the military de-
partments were organised and controlled, were demon-
strated by the vigorous if not altogether successful

v O

attempts for the reform of the army administration
which resulted from the investigations of Parliament
into the conduct of the Crimean war.

. The complete responsibility of ministers for the
control of the military force having been established
beyond dispute, it follows that they must be held
accountable to Parliament for their proceedings in this
as in other matters. But as the command of the army
and navy is the peculiar privilege and strength of the
executive power, and cannot be surrendered to Parlia-
ment without a virtual overthrow of the monarchy, it
is essential that the scrutiny of Parliament into military



b Grey, Parl. Govt. 8-10, n. See and Ld. Palmerston. Hans. D. v.

debate in the II. of C. on military 150. pp. 1849, 1357.

organisation, on June 1, 1858; and c Clode, Mil. Fore. v. 2, p. 69.
observations of Mr. Sidney Herbert



CONCERNING THE ARMY AND NAVY. 529

affairs should be cautiously and sparingly exercised,
lest the constitutional limits of enquiry and counsel
should be overstepped, and the functions of executive
authority be encroached upon. d The constitutional
security against an abuse of this prerogative is found in
the general responsibility of ministers, and the necessity
for the sanction of Parliament to the continued existence Pariia-
of the army and navy, by the annual appropriations for control 7
the support of these services, and the annual renewal of over thi9

-/r A preroga-

the Mutiny Acts. 6 tive.

Parliament has an unquestioned right to interfere,
by enquiry, remonstrance, and censure, in all cases of
abuse, whether on the part of individual military offi-
cers or of executive departments/ It has a right to
enquire into the causes and consequences of any disas-
ters that may befall our arms in the prosecution of
contests against the Queen's enemies.

Select committees to enquire into the miscarriages of the war
in Ireland were appointed by both Houses of Parliament in 1689,
and the Commons addressed the king for the trial of Colonel
Lundy for alleged treason on this occasion.? Similar enquiries
were instituted by the two Houses of Parliament during the
American revolutionary wars and the subsequent naval and military
operations in Europe. h

It may call ministers to account for placing any offi-
cers upon half pay, otherwise than as a reward for
past services, and a retainer for future services, if
required. 1 It has a right to discuss and advise upon
all general questions affecting the well-being of the
army and navy, their internal economy or efficiency ;



d Clode, Mil. Fore. v. 2, p. 422. years, is inexpedient.

e Ib. v. 1, p. 1 90. May, Parl. Prac- Hallam's Const Hist. v. 3, p. 195,

tice, 1883, p. 659. ed. 1829.

f See Hans. D. v. 180, pp. 369-400, " Hans. D. v. 136, pp. 1811-1816,

on a motion to resolve that the prac- 1857.

tice of appointing naval officers as ' Clode, Mil. Fore. v. 2, p. 98.

dockyard superintendents, and of Hans. D. v. 224, p. 1428.
limiting their term of office to five

VOL. I. MM



630 THE ROYAL PREROGATIVE

although great discretion and forbearance are necessary
in the exercise of this right. 1

It is essential to the constitution of a military body
that the crown should have the power of appointing,
promoting, or reducing to a lower grade, or of alto-
gether dismissing, any of its officers or men k from
service in the army or navy at its own discretion, and
without assigning any reason for the act ; such power
being always exercised through a responsible minister,
who is answerable to Parliament for the same, if it
should appear to have been exercised unwarrantably,
and upon an insufficient ground. 1

It was decided by the Court of Queen's Bench, in the case of
Dickson v Yiscount Combermere and others, 111 that the discretionary
power of the crown to remove officers of the army or militia is so
absolute, that even if an officer had been tried by a court of enquiry
and acquitted, the crown was justified in removing him from office
upon the advice of a minister responsible to Parliament. 11

But it would be a dangerous assumption of power
for either House of Parliament to interfere in a matter
affecting the discipline or command of the army or navy,
in any individual instance ; or, to institute an enquiry
into the causes which affect the promotion of particular
officers ; p or, to revise the decision of the War Office



J Hans. D. v. 89, p. 1069. Ib. And see Hans. D. v. 230, p. 1315, on

(Ld. Stanley) v. 167, p. 211. Ib. removal of Capt. Sulivan from naval

v. 164, p. 625. Ib. (Ld. Palmerston), command without a court-martial.

v. 169, p. 751. See observations in H. of 0. on con-

k As to authority for dismissing duct uf Board of Admiralty in cen-

private soldiers, see Hans. D. v. 186, suring a naval officer after he had

p. 732. been fully acquitted by a court-mar-

I Hans. D. (Ld. Hardwicke) v. 170, tial, Ib. v. 167, p. 793.

p. 382. Ib. (Ld. Palmerston) v. 180, Mir. of Parl. 1837, p. 861. Ib.

p. 456. Ib. (Gen. Peel) v. 189, p. 1841, p. 835. Hans. D. v. (Ld.

1017. Lucan's case) v. 137, p. 1333. Ma-

m 3. Fost. and Fin. p. 627. caulay's speech, Ib. v. 84, p. 890.

II Broom, Const. Law, p. 728. Gen. Peel's speech, 76. v. 174, p.
Clode,Mil. Fore. v. 1, p. 168; v.2, 36.

pp. 118-124. And as to dismissal of P Mir. of Parl. 1837, p. 574. Ib.

lords-lieutenant, see Ib. v. 1, p. 282. 1839, p. 2810. Proposed address for

See also discussions in H. of 1, and retirement of old naval officers with

H. of C. Hans. P. v. 170, pp. 381, a view to promotion of young and

1969, on Naval Courts of Enquiry, active men. Hans. D. v. 69, p. 483 ;



CONCERNING THE ARMY AND NAVY. 531

or of the Admiralty as to the pay, pension, allowances,
or retirement of individual officers ; q or, into the be-
stowal of military rewards or punishments to particular
persons ; r or, to review the decisions of courts-martial,
and the action of the military or naval authorities in
relation thereto ; s except in cases where either malver-
sation, corrupt motives, or gross violation of the law is
distinctly chargeable.

In 1863, the House of Commons were induced, under peculiar
circumstances, to require papers to be laid before them touching the
court-martial upon Colonel Crawley, for alleged cruelty to Sergeant-
Major Lilley ; but on March 15, 1864, it was resolved, after a long
debate, that the production of any further papers in this case was
inexpedient.* The legal immunity of commanding officers in the
army or navy in bringing their subordinates to trial by court-
martial is established by the case of Sutton v. Johnstone."

' There is no precedent, either in the army or navy,
for producing [to Parliament] a copy of the report of a
Court of Enquiry/ Neither should either House of Parlia -

THGn.tr5.rv

Parliament assume the right of enquiring into the most investiga
suitable and efficient weapons for use in the army and control.



and see Ib. v. 137, p. 1191 ; v. 164, p. 974, 1045. And discussions on Lt.-

876; y. 232, p. 1261. But in 1853 a Col. Dawkins' case, Ib. v. 179, pp.

committee of enquiry was appointed 642, 879 ; v. 180, p. 456. L. J. Hep.

by the H. of C. into the case of Lieut. N.S. v. 34. p. 841. Thomas, Const.

Engledue, it being alleged that he Law. p. 69. Hans. D. v. 193, pp.

owed his restoration to the service to 920,958. Clode, Mil. Fore. v. 1, pp.

corrupt influences. Com. Pap. 1852-3, 188-190.

v. 25, p. 471. Hans. D. v. 189, p. * As to the injurious effect of the

333. interference of Parliament in this

' Palmerston, Hans. D, v. 145, p. case, see Clode, v. 1 , p. 175, n Hans,

477. Clode, Mil. Fore. v. 1, p. 97. D. v. 189, p. 1026. And see Ib. Aug.

Hans. D. v. 203, p. 116. 6, in regard to the sentence on Capt.

1 Macaulay, in Mir. of Parl. 1841, Jervisby the court-martial at Simla,

p. 1687. Wellington, Hans. D. v.82, Also Com. Pap. 1867, v. 42, pp. 343,

p. 720. Clode, Mil. Fore. v. 2, pp. 553. And see debate on the Roberts'

326-330. Case of Capt, King (Army court-martial, Hans. D. v. 235, p.

prize money), Parl. D. v. 23, p. 1046. 923.

Hans. D. v* 74, p. 58 ; v. 164, p. 994; u 1. Term Rep. p. 493. Broom,

v. 167, p. 793. Const. Law, p. 650.

Mir. Parl. 1831-2, p. 2955. Ib. ' Mr. Hunt (1st Ld. Admiralty),

1834, p. 2121. Ib. 1835, p. 2344. Hans. -D. v. 232, p. 1976.
Ib. 1841, p. 835. Hans. D. v. 171, pp.

M M 2



632 THE EOYAL PREEOGAT1VE

navy, unless invited by the government to institute such
an investigation.*

In 1854, the House of Commons appointed a select committee
on the cheapest, most expeditious, and efficient mode of providing
small arms for the service ; and in 1863 a committee to enquire into
the results of recent experiments in various kinds of improved
ordnance. These committees were appointed with the sanction of
government ; nevertheless, the result of their labours was most
unsatisfactory. See a debate in the Commons, on March 2, 1865,
on a motion for a committee to consider of navy armaments, which
was negatived ; and on June 13, 1867, on a motion for a committee
to consider the present condition of the ordnance department, which,
being opposed by ministers, was withdrawn.

It has also been repeatedly held that Parliament has
no right to ask for information as to the distribution or
movement of troops, whether in times of peace or of
war ; but such information has been occasionally com-
municated, and- since 1865 has been regularly supplied
through the monthly army lists. 1

And here it may be observed that, prior to the
establishment of the railway system, all the highways
in the kingdom were assumed to be vested in the
sovereign, for the free use of the crown and people.
And the sovereign had a prerogative right to the use
of these highways, and of carriages and horses in the
vicinity, at statutory rates, for the passage of troops or
military stores thereon. The actual rights of the crown
in the use of railways in peace or on occasions of public
emergency are defined in a War Office memorandum on
the subject, dated April 1876. y

Parliament has a right to call for full information in
regard to military matters, for the purpose of enabling
it to vote with discretion and intelligence upon the
naval and military estimates. But this right must not
be held to justify an unseasonable interference in respect
to the details of military administration. For example,

w Hans. D. v. 163, pp. 1669-1581.
* Clcde, Mil. Fore. v. 2, pp. 331 333. ' Com. Pap. 1877, v. 60, p. 749.



CONCERNING THE ARMY AND NAVY. 633

it is an ' invariable rule, founded on the best possible
reasons, never to publish instructions sent to naval and
military officers, until the operations to which they
referred were completed, and not often in that case : ' z
or, to present papers concerning a rebellion or war in
which the country is engaged, until peace is restored : a
or, to make public reports from military officers in the
colonies to the military authorities at home, except at
the discretion of the government : b or, to give informa-
tion as to the mode in which honours are distributed in
the army.

If it be necessary at any time to institute minute
enquiries into matters connected with the internal
economy of the army or navy, such enquiries, it has
been authoritatively stated, ' ought to be made by a com-
mission emanating from the crown and reporting to the
crown, which report might afterwards be communicated
to the House of Commons for any purposes which the
House might require. But I think this House is not
the authority which ought properly to institute any
enquiries of this kind.' d It is perfectly competent,
however, for Parliament to address the crown to appoint
a commission for such a purpose. 6

Occasionally, the administration will avail itself of
some formal motion to explain to Parliament the circum- nations ou
stances attending the exercise of the royal prerogative thls head *
in particular matters connected with naval or military
administration.

Thus, on June 7, 1861, on motion for going into committee of

Ld. Palmerston, Hans. D. v. 172, promotion and retirement in the navy.
p. 659. Ib. v. 169, p. 749.] This opinion was

* Hans. D. v. 102, pp. 1185, 1333. afterwards corroborated by Mr. Dis-
" Mir. of Parl. 1837-8, p. 1528. raeli. Ib. v. 161, p. 1868 ; v. 170, p.

And see ante, p. 443. 875. See a debate on a change in

c Mir. of Parl. 1837, p. 603. But the system of promotion among army

verbal explanations may be asked for medical officers. Ib. v. 183, p. 585.

on such points; see Hans. D. v. 178, Hans. D. v. 172, p. 794. But

p. 1598. Ib. v. 179, p. 47. see the rules applicable to the ap-

d Ld. Palmerston, Hans. D. v. 137, pointment of .Royal Commissions,

p. 1241. [And see his speech on post, v. 2.



534



THE ROYAL PREROGATIVE



Prece-
dents of
enquiries
by Parlia-
ment.



Kempen-
feldt ex-
pedition.



Conduct
of the
Board of
Admi-
ralty.



supply, the attention of the House was directed to the recent
appointment of an officer to the colonelcy of a regiment, whose
claims to such a distinction appeared to have been quite insufficient.
The under secretary for war explained the circumstances of the
appointment, and justified it. After a few remarks from other
members, the subject was dropped/ Again, on June 5, 1862, en-
quiry was made in the House of Commons why a certain officer
had been permitted to retire on half -pay, contrary to the Queen's
Regulations. It was replied, that it was competent for the crown
to dispense with its own rules when an exceptional case occurred,
and that in any such case the secretary for war was responsible
to Parliament.^ And see on April 20, 1863, a debate in the House
of Lords, on a question put to the first lord of the Admiralty in
regard to the proceedings of a naval court of enquiry, which resulted
in the censure of Lord Elphinstone, the captain of H.M.S. Vigilant,
for alleged neglect of duty. On May 19, a similar (informal) dis-
cussion took place on the same subject in the House of Commons.

Having endeavoured to define the rights of the two
Houses of Parliament in regard to the exercise of this
branch of the royal prerogative, the following pre-
cedents are submitted in further illustration of the
subject:

In 1782, after the failure of the Kempenfeldt expedition, the
causes thereof were discussed in both Houses of Parliament. On
January 24, on motion of Mr. Fox, a committee of the whole House
was appointed, with the concurrence of ministers, ' to enquire into
the causes of the want of success of his Majesty's naval forces
during this war, and more particularly in the past year.' After this
committee had examined various papers laid before them, Mr. Fox,
on February 7, moved, 'That it appears to this committee that
there was gross mismanagement in the administration of naval
affairs in 1781.' This was intended as a direct censure upon the
Earl of Sandwich, the first lord of the Admiralty, and was to
have been followed up by an address for his removal from office, but
the motion was negatived. It was again proposed, in the House
itself, on February 20, but was again rejected. 11

In 1788, the Board of Admiralty, having, in their discretion,
promoted certain captains to the rank of admiral, passing over
others whom they adjudged to be disqualified for promotion, the
House of Lords was moved, 011 February 20, to address the king on



{ Hans. T). v. 163, p. 7G4. see Ib. v. 160, pp. 1606, 1785.

11. v. 167, pp. 405), 429; and h Parl. Hist. v. 22, pp. 878-946.



CONCERNING THE AKMY AND NAVY. 635

behalf of the naval captains who were thus neglected. The motion Prece-
was opposed by the ministry, on the ground that Parliament ought dents.
to ' place a due confidence in the first lord of the Admiralty, and
suffer him to exercise the discretion that belonged to his situation,
unmolested by their interference. The responsibility lay with that
officer and the Board, and there the discretion ought to rest like-
wise. Whenever a complaint was formally made of breach of trust,
or of improper conduct in any responsible member of the adminis-
tration, the House had a right to institute an enquiry, and, upon
sufficient proof of the facts alleged, to address his Majesty to re-
move the minister so misconducting himself. That was the con-
stitutional power of Parliament, and one of its most important and
salutary privileges ; but it was widely distinct from that or the other
House taking upon themselves to exercise the functions of executive
government.' i The mover disclaimed any intention of interfering
with the prerogative, which he admitted would be ' highly indecent
and improper,' but founded his motion on the assumption that the
merits of deserving officers 'had been overlooked.' Nevertheless,
the motion was negatived without a division. On the following
day, Mr. Bastard moved, in the House of Commons, an address to
the king to be pleased to confer some mark of royal favour on
Captains Balfour and Thompson, two of the officers in question,
and who had already received the thanks of the House for gallant
conduct. This was resisted by the ministry as an attempt to
transfer the patronage of the navy from the crown, by whom it was
exercised through responsible ministers, to the Commons, by whom
it would be exercised without responsibility or control ; ' for who
shall call to account the representatives of the people.' Such a
usurpation would be destructive to public liberty, and to our free
institutions, ' for no axiom is more obvious than that this constitu-
tion is dissolved from the instant that executive authority is assumed
by the representatives of the people. 'J The sense of the House
being manifestly against the motion, it was withdrawn. On April
18, however, Mr. Bastard renewed it in another shape. He moved
for the appointment of a committee to enquire into the conduct of
the Admiralty, in the late promotion of admirals. Mr. Pitt, the
premier, fully acknowledged the constitutional right of the House
to enquire into the conduct of any department of government, with
a view either to censure or punishment, ' whenever a case was made
out strong enough to warrant suspicion of abuse ; ' but he denied
that sufficient grounds for enquiry had been adduced in the present
instance. Mr. Fox expressed his concurrence in this view of the
constitutional position of Parliament, and observed that ' no one



1 Par!. Hist. v. 27, p. 16. i Ib. p. 28.



636 THE ROYAL PREROGATIVE

Prece- held more sacred the power of the prerogative, with regard to the
dents. distribution of military honours and rewards, than he did ; nor was
any one more aware that the House of Commons was by no means
a proper place for canvassing military promotions. Had this motion
been for an address to the crown, he could not have voted for it ;
but being for enquiry into alleged abuse, in a case in which he saw
very strong grounds for suspecting partiality and oppression on the
part of the first lord of the Admiralty, he should vote for it.
Nevertheless, the question was negatived. Undeterred by his
second defeat, Mr. Bastard once more renewed the subject, by
moving, on April 29, to resolve ' that it is highly injurious to the
naval service of Great Britain to set aside, in promotions of flag
officers, officers of distinguished merit and approved service, who
are not precluded from such promotion by any orders of his Majesty
in council.' The mover declared his object to be to induce the
House to lay down a permanent rule for the guidance and protec-
tion of naval officers, and to prevent arbitrary and capricious pro-
motions. The motion was characterised as being an uncalled for
attempt to fetter the discretion of the Admiralty Board, and an
implied censure on the first lord, which had neither been shown to
be merited, nor substantiated by evidence. The previous question
was put thereon, and negatived.

Wai- Our next precedent refers to an event which is very memorable

cheren ex- i n English history ; namely, the disastrous expedition to Walcheren,
in 1809. This expedition had been sent out in order to divert the
attention of Napoleon from the reinforcement of his armies on the
Danube, which had hitherto proved too powerful for the resistance
of Austria, and also for the purpose of attacking the naval arma-
ments and establishments in the Scheldt, which were daily be-
coming more formidable to the security of Great Britain. The chief
command of the expedition was given to Lord Chatham, a cabinet
minister. Although partially successful, in the demolition of the
docks and arsenals at Flushing, such gain was more than counter-
balanced by the unfortunate occupation of the island of Walcheren.
This island proved exceedingly unhealthy, and after sustaining
severe losses and privations, the troops were obliged to evacuate it,
and the remains of this ill-fated expedition were brought back to
England. At the ensuing session of Parliament, resolutions of
censure upon ministers, for the military operations of the preceding
year, were moved, as amendments to the address, in both Houses.
It was pertinently remarked, however, that ministers ought not to
be condemned without previous enquiry ; and these motions were
negatived. But, on January 26, 1810, Lord Porchester moved, in
the House of Commons, that a committee of the whole House be
appointed to enquire into the policy and conduct of the late expedi-



CONCEKNING THE AEMY AND NAVY. 537

tion to the Scheldt. It was contended, by ministers, that this Prece-
enquiry should not be instituted until the papers on the subject had
been communicated to Parliament. But the House would admit of



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