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no delay, and the motion was agreed to by a majority of nine. Soon
afterwards, the papers relating to this expedition were laid before
Parliament. [The discovery among the documents of a narrative of
the expedition, which had been privately submitted by Lord Chatham
to the king, led to interesting discussions on the constitutional ques-
tions involved in this proceeding ; and ultimately to the censure of
his lordship, and his consequent resignation of office. But this point
has been fully considered in a former chapter, page 267.] The enquiry
then proceeded, by the examination of witnesses at the bar. After
its termination, Lord Porchester, on March 26, submitted a series of
resolutions, setting forth the principal facts adduced in evidence,
and declaring ministers responsible for the heavy calamities which
had attended the failure of the expedition, and which called for the
severest censure of the House upon them. After protracted debates
the resolutions were negatived, and counter-resolutions, proposed by
General Craufurd, were agreed to, on divisions which gave ministers
a majority of from 23 to 51. k This result was unexpected, and was
attributed, not so much to the exertions of the government in in-
fluencing votes, as to the preponderance of their arguments in
debate. 1

On August 4, 1835, Mr. Hume complained to the House of Secret so-
Commons of the conduct of Field-Marshal H.R.H. the Duke of the army.
Cumberland, for having, contrary to the express orders of the
commander-in-chief, taken part in promoting the establishment of
Orange lodges in the army. Whereupon the House agreed to
certain resolutions on the subject, and to an address to the king
directing his Majesty's attention thereto. In reply, the king assured
the House that he would take the most effectual means to discourage
and prevent every attempt to introduce secret societies into the army.
The home secretary (Lord John Russell) also informed the House
that he had communicated copies of the address and reply to the
Duke of Cumberland, and had been assured by his royal highness
that he had taken steps to bring about the immediate dissolution of
the Orange institution in Great Britain and Ireland." 1

In 1835, various petitions were presented to Parliament, com-
plaining of illegal and oppressive conduct on the part of General
Darling, whilst governor of New South Wales. Among the charges
preferred was one on behalf of a Captain Robinson, who had been
dismissed from the army on account of the findings of a military
court of enquiry, and of a court-martial against him, General

" Parl. D. v. 16, p. 422. m Com. Jour. v. 90, pp. 534, 552 ;

1 Lewis, Administr. p. 322. Hans. D. v. 70, p. 519.



538 THE ROYAL PREROGATIVE

Darling being held responsible for the manner in which these en-
quiries were conducted, and for the arbitrary and unjustifiable
dismissal of Captain Robinson. On July 30, Mr. Maurice O'Connell
moved the House of Commons to appoint a select committee to en-
quire into the conduct of Governor Darling in the several matters of
complaint alleged against him. Sir G. Grey (the colonial -secretary)
opposed the motion on general grounds, and Mr. Cutlar Fergusson
(the judge advocate general) defended the finding of the court-
martial. He said that ' before the House could pass so grave a
censure on that tribunal, as to refer it to a committee to enquire
whether their decision was just or not, they ought to be satisfied,
not only that the judgment of the individuals composing it was
wrong, but that they had been actuated by corrupt or unworthy
motives in coming to their decision.' Nevertheless, on a division,
the motion for enquiry was carried against ministers. 11 On August 7,
after the nomination of this committee, Lord John Russell moved
that it be an instruction to them, ' that they do not include in their
enquiry or take cognisance of the proceedings, finding, or sentence
of the court-martial held on Captain Robinson.' Admitting that
' there might arise cases requiring the great constitutional superin-
tendence of the House of Commons,' their interference should only
take place under ' very grave circumstances,' and the House should
then proceed, not by appointing a committee of their own, before
which the case should be tried over again, ' but rather by asking for
the minutes of the court-martial, and then addressing his Majesty
to take further steps, if necessary, in consequence of the injustice,
partiality, or illegality of the proceedings of the court-martial.'
These arguments prevailed, and, after some further debate, the
House agreed to the instruction.

On August 6, 1867, Mr. Brett moved to address her Majesty,
that she would be pleased to reconsider the sentence of the court-
martial held at Simla, on Captain Jervis, with a view to reinstate
that officer in his rank in the army, and in his regiment. This
officer, who was aide-de-camp to Sir W. Mansfield, the commander-
in-chief in India, had been tried for fraud and insubordination,
at the charge of Sir W. Mansfield. Though acquitted of fraud, he
had been found guilty of the other offence, but had been recom-
mended to mercy on account of extenuating circumstances. Never-
theless, the Indian commander-in-chief sentenced Captain Jervis to
be dismissed the service. This sentence was afterwards confirmed
by the commander-in-chief at the Horse Guards, after consultation



n Mir. of Parl. 1835, pp. 2198- Mil. Forces, v. i p. 175. The com-

2209. mittee afterwards made a report, ex-

2b. pp.. 2344-2348 ; Sir H. Har- culpating Gen. Darling, 76. p. 2875.
dinge's speech, Ib. p. 2658 ; Clode,



CONCERNING THE ARMY AND NAVY. 639

with the secretaries of state for war and for India. But a gratuity Prece-
of 1,800. was tendered to Captain Jervis, which he refused to dents,
accept. At first the government declined to lay the proceedings at
this court-martial before the House of Commons, on the ground it
would be ' very unusual ' to do SO.P But, on July 2, they acceded to
a motion for an address for a copy of this paper, without debate.
It was accordingly presented to the House. q Then followed Mr.
Brett's motion, above mentioned. General Peel, who was secretary
for war when these transactions took place, strenuously opposed the
interference of the House on this occasion. He asserted that the
House ' were every day assuming a power which the constitution
never intended that they should exercise,' and ' in no case could that
be more detrimental than when they interfered with the command
and discipline of the army.' Sir John Pakington (secretary for war)
resisted the motion, first, because of ' the grave impropriety of
making the House of Commons a court of appeal from a grave and
serious decision of a military tribunal.' Secondly, because ' full
justice had been done in the matter.' After further debate, Mr.
Otway moved an amendment that the address should pray her
Majesty ' to give effect to the recommendation to mercy contained
in the sentence of the court martial held at Simla on Captain Jervis.'
Mr. Brett agreed that Mr. Otway 's motion should be substituted for
his own. Whereupon the House divided, and Mr. Otway's motion
was negatived by a majority of eighteen. 1 " Mr. Brett afterwards
informed the House that he had referred the matter to the com-
mander-in- chief, ' believing that he will do Captain Jervis ample
justice.' s

On August 8, 1870, the first lord of the Admiralty, in reply
to a question put to him in the House of Commons, declined to lay
before the House papers concerning the trial by court-martial of a
sergeant of the marines. 1

On June 1, 1874, Mr. W. M. Torrens moved in the House of
Commons for an address to the Queen, ' that before her royal sanc-
tion in time of peace is asked for the permanent removal from
active service of any officer under the rank of major-general, who
shall have held a commission in the army for three years, Her
Majesty may be graciously pleased to direct that an option may be
given him of having his case heard, and adjudicated upon by court-
martial.' It was opposed by ministers, on the ground that such a
rule would be an unnecessary interference with the royal preroga-
tive, and was negatived on division. On June 4, 1875, Mr. Torrens



P Hana. D. v. 188, p. 606, and see ' Hans. D. v. 189, pp. 1004-1040.
p. 770, lb, p. 1100.

o Com. Pap. 1867, v. 42, p. 343. ' Ih. v. 203, p. 1696. And see



640



THE ROYAL PREROGATIVE



Prece-
dents.

Conduct
of com-
mander
of the
forces.



Crimean
expedi-
tion.



renewed his motion ; but after some debate the House was counted
out.

On May 3, 1836, Sir William Molesworth moved for the appoint-
ment of a committee to enquire into the conduct of the commander
of the forces, in appointing Lord Brudenell to the lieutenant-
colonelcy of the llth Light Dragoons. His lordship, it seems, had
about two years previously been removed from the command of a
regiment, on account of his having been censured by a court-martial
before which he had appeared as prosecutor. Under these circum-
stances, it was assumed that his re-appointment to a similar position
was improper. In reply, it was shown that the military authorities
were of opinion that Lord Brudenell had been sufficiently punished
for his past conduct, and that there were no objections to his being
reinstated ; that there was no cause for imputing misconduct to the
commander of the forces, and therefore no parliamentary ground for
the proposed enquiry. It was also urged that the re-appointment of
this nobleman was simply an act of discipline, not of patronage, and
that any interference in such an act by the House of Commons
would be unprecedented and unwarrantable. After some further
debate the motion was withdrawn."

The disasters which befell the British expeditionary force in the
Crimea, at the commencement of the war with Russia, in 1854, were
of such magnitude that the state of the army, and the general con-
duct of the war, engaged the serious attention of Parliament at its
next meeting, and animated debates took place in both Houses. On
January 26, 1855, Mr. Roebuck moved, in the House of Commons,
for the appointment of a committee to enquire into the condition of
our army before Sebastopol, and into the conduct of those depart-
ments of the government whose duty it had been to minister to the
wants of the same. This motion, although of a very stringent
character, and involving a censure on the government for their
management of the war, was strictly within the limits of constitu-
tional enquiry. v Before the debate commenced, Lord John Russell,
the president of the council, and leader of the House of Commons,
announced his resignation of office, on account of his inability to



debate on case of Lieut. Tribe, Ib.
v. 213, p. 382; v. 214, p. 490.

Mir. of Parl. 1836, p. 1306.

T See Hans. I), v. 136, pp. 1811-
]816, 1857. On June 17,1864, Sir
J. D. Hay moved to resolve that her
Majesty's government in landing
forces on the Gold Coast for the pur-
pose of waging war against the King
of Ashantee, without making any
sufficient provision for preserving the



health of the troops to be employed
there, have incurred a grave respon-
sibility ; and that this House laments
the want of foresight which has
caused so large a loss of life. The
government regarded this motion
as a vote of censure, and opposed it
accordingly. After a long debate, it
was negatived by a majority of seven.
See also post, p. 547.



CONCERNING THE ARMY AND NAVY. 641

resist the proposed investigation. He admitted that the inquisitorial Prece-
power was a most valuable parliamentary privilege, and acknow- denls -
ledged that the motion for enquiry could only be opposed on one of
two grounds, either that existing evils were not of sufficient magni-
tude to call for investigation, or that means had been taken to remedy
them. As he could assert neither of these propositions, he had de-
termined to resign his office. w After these explanations, the debate
began. The motion was opposed by the ministry, on the ground that
it went beyond mere enquiry, and was an unconstitutional attempt
to take the control of the expedition out of the hands of the govern-
ment ; that to grant the committee would be detrimental to the
public interests, and would tend to paralyse the action of the execu-
tive, both at home and abroad, at a most critical period.* Being
thus strenuously opposed by government, the question virtually
assumed the shape of non-confidence in the ministry, and when by a
large majority the House affirmed the necessity for enquiry, the
ministry resigned.? They were succeeded by a ministry under the
premiership of Lord Palmerston, who had filled the post of home
secretary in the previous (Lord Aberdeen's) administration, and
who, retaining the objections he had formerly expressed to the pro-
posed committee of enquiry, urged upon the House to abandon it,
and to repose confidence in the new executive, who would pledge
themselves to introduce such administrative improvements as were
necessary for the vigorous prosecution of the war. 2 The House of
Commons, however, having agreed to appoint the committee, were
unwilling to forego the enquiry ; and at length Lord Palmerston re-
luctantly consented to its being nominated, without any limit to its
original scope and purport.* The first report of the committee was
a recommendation that they should be made a committee of secrecy,
but this proposition, not meeting with general acceptance, was dis-
agreed to by the House. b After a protracted investigation, the com-
mittee made several reports, disclosing grievous mismanagement on
the part of the authorities at home and abroad, in the conduct of the
war, and making several recommendations for the improvement of
the military organisation, &c. On July 17, 1855, Mr. Roebuck
moved the following resolution, based upon the information elicited
before the committee : ' That this House deeply lamenting the suf-
ferings of our army during the winter campaign in the Crimea, and
coinciding with the resolution of their committee, that the conduct
of the administration was the first and chief cause of the calamities



w See ante, p. 223. a Ib. p. 1865. Martin, Life of

* Hans. D. v. 136, pp. 960, 999, P. C. v. 3, p. 211.

1051, 1202,1225. b Ib. p. 218. Hans. D. v. 136, p.

f Ib. p. 1234. 2088; v. 137, pp. 18-63.

* Ib. p. 1424.



542



THE ROYAL PREROGATIVE



Prece-
dents.
Crimean
expedi-
tion.



which befell that army, do hereby visit with severe reprehension
every member of that cabinet whose counsels led to such disastrous
results.' The government met this motion by proposing the previous
question, contending that the House had not the means of judging
correctly of the Crimean expedition ; that the result of the enquiry
had been inconclusive, and confessedly incomplete, inasmuch as the
committee were precluded, from motives of state policy, from more
thorough investigations and criticisms, owing to the war having been
conducted in concert with our ally, the Emperor of the French ; and
that the present ministry were not responsible for the original dis-
asters, which occurred before their acceptance of office, and had since
been remedied, at least to a very considerable extent. In reply,
Mr. Whiteside urged that, according to the doctrine of ministerial
responsibility, Lord Palmerston, having been a member of Lord
Aberdeen's government, and having, since the recent ministerial
changes,, consented to the present enquiry, was in fact still responsi-
ble for the past transactions ; and that he, in common with the other
members of the late government who could be shown to have been
concerned in such mal-administration (and who were now out of the
ministry), ought to suffer the penalty of exclusion from office. This
view of the position of Lord Palmerston was denied by Lord John
Russell, the attorney-general, Sir G. Grey, and others, who con-
tended that the responsibility for the acts complained of lay with the
ministry of Lord Aberdeen, which having been virtually condemned
by the House of Commons, had resigned office, and that Lord Pal-
merston was now the head of an entirely new administration, and
could not be held responsible for the conduct of his predecessors. It
was admitted by Lord John Russell that, agreeably to the dictum of
Macaulay, the member of an existing cabinet who differs from the
rest on a vital point is bound to resign : but that ' while he retains
his office, he is responsible even for the steps which he has tried to
dissuade his colleagues from taking.' c Further than this, he was
of opinion the doctrine of ministerial responsibility could not be
applied, and it certainly did not justify the condemnation of the
head of one ministry for the acts of a preceding ministry, because lie
happened to form part of the same. In this view the House con-
curred, and after two nights' debate, the motion for the previous
question was carried by a large majority. d Reviewing the question
dispassionately, it is evident that the decision of the House was
correct, and that the responsibility of Lord Aberdeen's administra-
tion terminated upon their enforced resignation of office. If, as the
result of parliamentary investigation, further proceedings against
any particular member of that ministry should have appeared to be
advisable, they should have taken the shape of a parliamentary im-



c Hans. D. v. 139, p. 1080.



d Ib. July 17 and 19, 1865.



CONCERNING THE ARMY AND NAVY. 643

peachment, or of a criminatory address to the crown, against the Prece-
offending individual, and not that of an endeavour to affix a con- dents,
tinuance of ministerial responsibility for past acts upon a member of
a new administration.

On July 24, 1860, Sir John Pakington moved, in the House of Board
Commons, for an address to her Majesty for the appointment of a f Ad-
royal commission to consider the existing system of promotion and
retirement in the royal navy ; and the pay and position of the several
classes of naval officers. The motion was opposed by government on
the ground that, admitting grievances to exist, it would be better to
trust to the Board of Admiralty, as the responsible department, to
effect the necessary improvements, rather than to unsettle the navy
by a pointing an irresponsible commission, whose recommendations
might excite hopes that could not be realised. The motion was
negatived on division. On June 12, previous, Admiral Duncombe
had moved for the appointment of a select committee to enquire into
the constitution of the Board of Admiralty, and the various duties
devolving thereon. Being opposed by government, the motion had
been withdrawn, but with the declared intention, on the part of the
mover, to renew it in the following session. Accordingly, on March
1, 1861, the motion was again made. Meanwhile, on February 28,
a discussion had arisen upon a series of resolutions in favour of a
reform in the naval administration, and a reorganisation of the Board
of Admiralty, which were proposed by Sir J. Elphinstone, but, after
a short debate, were withdrawn. Anxious to conciliate the House
upon the question, the government decided to agree to the appoint-
ment of a committee on the Board of Admiralty ; not because they
anticipated that an enquiry would prove any great change in the
composition of the Board to be necessary, but because it might ' pos-
sibly detect faults,' and ' prove that many misconceptions exist with
regard to this great branch of the public service.' e They undertook,
moreover, to 'give every possible assistance, in order that the enquiry
might reach every detail and branch of the Admiralty.'* The com-
mittee was accordingly appointed. Four days afterwards, Sir J.
Elphinstone moved for the appointment of another committee to
consider the question of promotion and retirement in the royal
navy, and the pay and position of naval officers. This motion was p r omo-
agreed to by a small majority, notwithstanding the opposition of tion and
government.^ But a week afterwards, this order was rescinded, with- retire "
out a division, upon the motion of Lord Palmerston (the premier), the navy,
the House being ' fully agreed as to the inexpediency ' of referring
the question of paying the navy to a select committee. So far as
concerned the other portion of the enquiry, Lord Palmerston moved

Hans. D. v. 161, pp. 1265. 1267. ' lb. p. 1248.

* lb. pp. 1458-1480.



544 THE ROYAL PREROGATIVE

Prece- that it be an instruction to the committee on the Board of Admiralty
to consider the present system of promotion and retirement in the
royal navy, and to report their opinion thereon : which was agreed
to. h The committee, however, after examining a number of wit-
nesses, merely reported the evidence, without expressing any
opinion upon the matters referred to them. 1 No motion for the re-
appointment of the committee was made in the following session,J a
circumstance which has been generally attributed to a growing im-
pression that the administration of naval affairs had become more
satisfactory within the last two years, and that no radical errors
existed which called for the interference of Parliament. 1 * On June
9, 1863, however, the reappointment of the committee was moved
for ; but being opposed by government, the motion was withdrawn,
on an adjourned debate, upon June 24. But on February 24, 1863,
Sir John Hay moved for an address to the Queen on the position of
officers of the navy in respect to promotion and retirement, declaring
the same to be unsatisfactory at present, and setting forth the prin-
ciples upon which it should be amended. Lord Palmerston opposed
the motion, asserting it to be ' not altogether consistent with a proper
regard for the legitimate functions of the House ; ' first, because ' it
was a dangerous course for the House to assume to itself adminis-
trative functions,' and also because 'it is not expedient for the
House to address the crown to make an increase in any department
of the public expenditure. It is for the executive government, upon
its own responsibility, if it should see fit so to do, to propose to
Parliament such additions to that expenditure as they may deem
necessary for the public service, and it is for this House to adopt
or reject them, as it pleases.' The noble lord, however, contented
himself with proposing, as an amendment to the question, a resolution
that this House, having on March 13, 1861, instructed a select com-
mittee to consider the present system of promotion and retirement
in the royal navy, is of opinion that its decision should be suspended
until the subject shall have been accordingly considered and reported
upon ; and that a select committee be appointed to consider the said
system, and to report their opinion thereon to this House. Sir John
Hay accepted this alternative, and the amendment was agreed to
without a division. 1

On June 11, 1861, a motion was made in the House of Commons
for an address to the Queen, to be pleased to take into considera-



b Hans. D. v 161, pp. 1885-1889. And see post, v. 2, ch. on The Board of

1 Com. Pap. 1861, v. 5. Admiralty.

J Hans. D. v. 165, pp. 626-638, ' Hans. D. v. 169, pp. 751-784.

1263. See a further motion, by Sir L. Palk,

k Ib. p. 630; v. 169, p. 754; y. 171, on the subject of pay, &c. of naval

p. 667. But see v. 169, pp. 663, 769. officers, on June 8, 1864.



CONCERNING THE ARMY AND NAVY. 645

tion the position of certain army colonels who had been promoted Prece-
to that rank for distinguished services during the Crimean war, dents,
but whose case had been overlooked in the framing of some new Regimen-
regulations in respect to regimental promotions, ' whereby their tal promo-
prospects in the service had been materially injured.' This motion
was agreed to without a division, the government having admitted
that the claims of these officers had been unintentionally overlooked,
and consented to appoint an official departmental committee to
consider the same. m This committee reported against the claims of
these officers, and the government confirmed their decision. The
question was still pressed upon the attention of government by
questions and motions in the House of Commons," and on April 28,
1863, a motion for an address to the crown to issue a royal com-
mission for the further investigation of the matter was proposed.
Lord Palmerston deprecated the interference of the House with
the detailed management of the army, because that is no part of the
constitutional functions of the House of Commons, ' and was calcu-



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