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lated to lead to very objectionable results ; ' but he promised, if the
motion were withdrawn, that a commission should be issued. Mr.
Disraeli defended the motion as strictly regular, and as being no
infringement of ' the constitutional practice, entirely recognised,
that it is not the business of Parliament to interfere with the govern-
ment of the army,' inasmuch as the proposed proceeding was by an
address to the crown. The motion, however, was withdrawn, in
faith of the promise made by the premier. But in 1869 and 1870,
the attention of the House of Commons was called, by a private
member, to certain hardships inflicted on colonels of the British
army in consequence of their supersession by colonels of the Indian
army, and on June 29, 1870, ministers consented to the appoint-
ment of a select committee to enquire into the matter.?

On May 15, 1863, a motion for papers relating to the condition Q uar ^ er -
of regimental quartermasters, ' though to a certain extent connected
with the discipline of the army,' was admitted to be very proper for
the consideration of the House of Commons, ' involving as it did
essentially a financial question.' <i On June 21, 1864, an address was
agreed to by the House of Commons (with the consent of the govern-
ment) for an enquiry into the condition, pay, and allowances, of
regimental quartermasters.

On March 3, 1864, a resolution was proposed in the House of Yeomanry
Commons to declare that the discontinuance of the assembling of cava ^ rv -
the yeomanry cavalry for the customary training, during the present
year, was inexpedient, and would be detrimental to the efficiency of

m Hans. D. v. 163, pp. 938-944. " Ib. v. 197, p. 1888; v. 202, p.

" Ib. v. 169, pp. 26^, 1947. 1168.

^b. v. 170, pp. 873-876. Ib. v. 170, p. 1779.

VOL. I. K N



646 THE EOYAL PREROGATIVE

Prece- the force. The assistant secretary for war declared that the govern-
dents. merit had been obliged to take this step, in order to reduce the

army estimates ; but that they did not consider it would have the
effect of materially diminishing the efficiency of the force. Upon
division, the motion was negatived by a majority of one. r But the
government, having been enabled to effect an unexpected saving
upon the estimate for the cost of prosecuting the war in New
Zealand, afterwards submitted to the House a vote for the training
of the yeomanry, which was agreed to by a large majority. 8
Indian On May 2, 1865, a member called the attention of the House of

army Commons to petitions from certain officers of the late East India

Company's army, complaining of a breach of faith on the part of
the government, in the reduction of that force, and its amalgamation
with the army of the Queen. The case of these officers had been
already discussed in Parliament ; upon a motion for a committee of
enquiry, the government had agreed to appoint a royal commission,
who had reported upon the alleged grievances. The government
had undertaken to redress such grievances as might be substantiated
before the commissioners. Nevertheless, it appeared that the result
of their decision upon the several matters of complaint was regarded
by many as being partial and inadequate. Accordingly, an address
to the crown praying for the redress of all the grievances admitted
to exist by the commissioners, which had arisen by a departure from
the assurances contained in certain Acts of Parliament was pro-
posed and carried (against ministers) ; the secretary of state for India
contending that, as a whole, the condition of the officers of the Indian
army had been considerably benefited by the action of government.
On May 9, an answer was received to the aforesaid address, stating
that directions should be given for further enquiry into this matter,
in order that ' ample redress ' should be afforded wherever it might
appear to be necessary. On May 15, the case of the officers of the
late Indian army was fully debated in the House of Lords, upon
the presentation of a petition from an officer in a Bombay regiment.
It was then stated by the secretary of state for war that, in defer-
ence to the opinion of the House of Commons, it was the inten-
tion of the government to appoint a new commission to investigate
whether the grievances pointed out by the first commission had, or
had not, been removed. 1 On June 29, the House of Commons was
informed that the new commission had been appointed, and had
commenced their labours." Their report, dated September 14, 1865,
was laid before Parliament in the following session. On August 6,



r Hans. D. v. 173, pp. 1876-1888. informed of the intention to appoint

Ib. v. 175, p. 45. this commission. Ib. p. 297.

1 Ib. \. 17U, p. 286. On the same u Ib. v. 180, p. 926.
day the House of Commons was



CONCERNING THE ARMY AND NAVY. 647

1866, Lord Cranborne, the secretary of state for India, informed Prece-
the House of the conclusions arrived at by the new Derby admiiiis- dents,
tration, for the remedy of the grievances under which the officers of
the local army of India had so long laboured. These conclusions
were afterwards embodied in two despatches from the secretary of
state to the government of India, dated August 8, 1866. v But on
June 28, 1870, the House of Commons again addressed the crown
in respect to these grievances, and at the same time a committee
was appointed by the House to consider counter- complaints of hard-
ships urged on behalf of colonels of the British army, owing to
their supersession by Indian army colonels. This committee re-
ported in July. w On February 8, 1875, another select committee
was appointed by the House of Commons on this subject, which
reported on March 23. x

On March 20, 1866, with the consent of the government, a select Mortality
committee was appointed by the House of Commons 'to enquire P'^pP 8
into the mortality of the troops in China, the causes which led to
it, and into the conduct of those departments of the government
whose duty it has been to administer to the wants of those troops.'
This was no party question, but arose out of certain unfortunate
occurrences, in regard to which the under-secretary for war stated
that the government, whilst they were willing to take the respon-
sibility upon themselves, considered it more advisable that the
subject should be investigated by a committee.? This committee
reported, on July 24, the evidence they had taken on this subject,
together with their opinion upon the facts before them. The main
conclusion at which they arrived was to the effect that, during the
summer of 1865, the troops stationed in China were overcrowded
in barracks, and had very defective hospital accommodations, which
occasioned much sickness and loss of life. They acquitted the War
Department of blame in regard to these unfortunate occurrences,
but recorded their belief that fuller instructions explanatory of the
views of the imperial authorities respecting the needful arrange-
ments for the proper care of the troops, ' so far from limiting the
discretion of the general officer in command, would have enlightened
and strengthened him in its exercise.' *

On February 14, 1867, explanations were given to the House of
Commons of the circumstances attending a certain naval promotion,
whilst the reasons for the same were withheld, lest ' it might create
misunderstanding,' a Dissatisfied with these explanations, a member
moved, on March 21, that 'the promotion by the first lord of the

r Com. Pap. 1866, v. 52, p. 157. Com. Pap. 1875, v. 10, p. 247.

w Hans. D. v. 202, p. 1147 ; v. 210, " Hans. D. v. 182, p. 647.

p. 969. Com. Pap. 1870, v. 5, p. * Com. Pap. 1866, v. 15, p. 1.

739. Hans. D. v. 185, p. 343.

y x 2



548 THE ROYAL PREROGATIVE

Prece- Admiralty of a junior lieutenant in the navy, without any special or
dents. distinguished service, over the heads of hundreds of meritorious
lieutenants senior to him in the service, is prejudicial to the public
interest.' Ministers opposed the motion on the ground that, while as
a general rule promotions were ' by selection, based on seniority,' a
discretion had been usually exercised by first lords, in particular
cases, which was not inconsistent ' with the interests of the naval
service.' Several such cases having been referred to in the debate,
the motion was withdrawn until the House should be in possession
of further information on the subject. b The subject was not again
resumed.

On July 16, 1868, a select committee was appointed by the House
of Commons to enquire into certain allegations of complaint against
the royal gun factories.

On July 6, 1877, ministers successfully' resisted an attempt to
refer to a select committee the question of the best mode of con-
structing war vessels, on the ground that it would be an undue inter-
ference with the responsibility of the Admiralty in such matters." 1

Martial Since the publication of the first edition of this volume

the popular and hitherto generally accepted definition
of martial law has been brought to the test of judicial
determination, and has been utterly repudiated and
disallowed.

Sir Alexander Cockburn, lord chief justice of the
Court of Queen's Bench, in his charge to the grand jury
at the Central Criminal Court in the case of Kegina v.
Nelson and Brand, 6 establishes the important fact that
martial law, as popularly understood, is unknown to the
law of England. This charge, though not law, defines
what in the opinion of the learned judge is the state of
the law. The crown itself, he asserts, has no preroga-
tive to proclaim a state of martial law, which shall
place the civil courts in abeyance, and subject all per-
sons within the district immediately concerned to the
jurisdiction of the military power.

The army is governed by a military law, applicable

b Hans. D. v. 186, pp. 293-311. d Jb. v. 235, p. 909.

Return presented, Com. Pap. 1867, e Published and edited by iIr. F.

v. 44, p. 569. Cockburn, London, 1867.

Hans. D. v. 193, pp. 1254-1261.



CONCERNING THE ARMY AND NAVY. 649

only to soldiers, but which is definite, precise, and legal,
having been framed by experienced military authorities,
and ratified by the sanction of Parliament/

Martial law is a very different thing. It is the assump-
tion of arbitrary power over all persons in any district
wherein martial law has been proclaimed, for the pur-
pose of quelling an armed insurrection against the
constituted authorities. And it is conclusively shown,
in this luminous and elaborate charge, that the crown,
in its constitutional capacity, has no inherent prerogative
to proclaim martial law, as applicable to the inhabitants
of the country generally, or to any particular district
thereof, under any circumstances or conditions whatso-
ever, and that martial law cannot be enforced within the
realm of England except by authority of Parlfament.

In case of riot or insurrection the magistrates are
authorised, by the Eiot Act, to call in the aid of the
military power to act in aid of and under the civil
power, for the suppression of the same.

The legality of the employment of troops, under the authority
of the civil magistrate, and upon the responsibility of the secretary
of state for the Home Department, has been sometimes impugned,
as being equivalent to the introduction of martial law and military
government. But this doctrine has found no favour with the best
constitutional authorities, and it is quite inapplicable to an army
which, like that of Great Britain, owes its very existence to Parlia-
ment, and is directly subordinated to the control of the civil power.
It has been held, moreover, that, in cases of emergency, the executive
government may issue a proclamaUOTiempowering the military
authorities to act for the suppression of riots, without waiting for
directions from a civil magistrate.^ The extent to which it is
allowable to employ volunteers for suppression of riots is regulated
by circulars from the War Office. These circulars were at first



f See ante, p. 521. 127. Forsyth, Const. Law, p. 214.

* Parl. Hist. v. 9, p. 1294. Queen's The whole question is discussed, and

Regs, and Orders for Army, ed. 1883, the authorities reviewed in Clode's

p. 222. Prendergast, Law of Army, Mil. Fore. v. 2, ch. 17, and Stephen's

p. 13. Finlason, Martial Law, pp. Hist. Grim. Law, v. 1, pp. 207-216;

v. 26. May, Const. Hist. v. 2, p. eee also Hans. D. v. 212, pp. 3, 285.



550 THE ROYAL PREROGATIVE

severely criticised in both Houses of Parliament, and were after-
wards re-issued with more explicit directions. 11

If a rebellion or invasion occurs, the crown has a
common-law right and is imperatively required to put
it down by military force. But all prisoners who are
taken at such times must be tried before the ordinary
tribunals ; unless Parliament has interposed, at this
particular juncture, by passing a law authorising a
summary mode of procedure against persons implicated
in these grave offences.

The chief justice (Cockburn) admits that ' where
illegal force is resorted to for the purpose of crime, you
may meet that illegal force by force, and may repress
and prevent it by any amount of force that may be
necessary for the purpose ; ' as, for example, ' if a mutiny
breaks out on board ship, immediate force may be re-
sorted to ; you may quell the mutiny if necessary by
killing those engaged in it.' ' But this is not what can
properly be called martial law.' It is ' the law of
necessity,' which ' is part and parcel of the law of Eng-
land.' The question really is, ' whether for the suppres-
sion of a rebellion, you may subject persons not actively
engaged in it, and whom you therefore cannot kill on
the spot, to an anomalous and exceptional law, and
try them for their lives without the safeguards which
the law ought to afford.' ' To aay that ' the necessity of
suppressing rebellion is what justifies the exercise of
martial law ' in the sense of an arbitrary, illegal, and
irregular interposition of authority is a ' fearful and
odious doctrine. There are considerations more im-
portant even than the shortening the temporary dura-
tion of an insurrection. Among them are the eternal
and immutable principles of justice, principles which



h Com. Pap. 1867. v. 41, pp, 819- p. 1936 ; v. 188, pp. 744, 751.
621. Hans. D. v. 185, pp. 371,919, ' Cockburn's Nelson v. Brand, pp.
1551 ; v. 186, pp. 457, 728; v. 187, 85, 86.



CONCERNING THE ARMY AND NAVY. 551

can never be violated without lasting detriment to the
true interests and well-being of a civilised community. >j
The weighty arguments contained in this charge k
induced the grand jury in a presentment in this case to
express a hope that martial law, as it is called, might be
more clearly defined by legislative enactment. 1

But the Law Magazine for August, 1867 (pp. 222-239), in an
able article epitomising the charge of the chief justice, questions the
wisdom and expediency of any further legislation on the subject,
and is of opinion that the principles of constitutional law which
have been so accurately set forth in this memorable charge will
hereafter suffice to meet any future contingencies of the kind that
may hereafter arise. This opinion has been virtually accepted by
the House of Commons, in a debate on July 2, 1867, upon a motion
to resolve that the crown had no power to suspend the law or to
proclaim so-called ' martial law ' without the assistance of Parlia-
ment. The sense of the House was against the motion ; and it was
truly remarked that ' the House in passing such a resolution would
be doing something beyond its functions, and to which no court of
law would pay the least attention.' If the proclamation of martial
law ' were legal, what power had the House, being only one part of
the legislature, to make it illegal ? If it were illegal, what advantage
would there be in the resolution ? ' m The motion was accordingly
withdrawn.

On May 6, 1867, enquiry was made of ministers
whether they proposed in any manner to act upon this
recommendation. It was replied that, previous to the
aforesaid presentment, the secretary of state for the
colonies had directed a circular to colonial governors,,
which expresses the views of her Majesty's government
on the subject of martial law. n

By this circular, which is dated January 30, 1867,
an extract is communicated of a despatch addressed;
to the Governor of Antigua, in reference to an act ix*
that colony, l which purports to invest the executive
government with a permanent power of suspending the



* Cockbura's Nelson v. Brapdi p. l L. T. v. 42, p. 474.
108. ra Haus. to. v. 188, p. 915.

" Ib. pp. 85, 86, 108. a /&. Y, 187, p. 3.



652 THE ROYAL PREROGATIVE

ordinary law of the colony, of removing the known safe-
guards of life and property, and of legalising in advance
such measures as may be deemed conducive to the esta-
blishment of order by the military officer charged with
the suppression of disturbances,' and which is declared
to be ' entirely at variance with the spirit of English
law/ Instructions are given to cause to be submitted
to the legislature an act for the repeal of this law,
because ' in no colony ' should the power given by the
said law ' be suffered to continue.'

The circular adds that, in giving these instructions,
1 her Majesty's government must not be supposed to
convey an absolute prohibition of all recourse to mar-
tial law, under the stress of great emergencies, and in
anticipation of an act of indemnity. The justification,
however, of such a step must rest on the pressure of
the moment, and the governor cannot by any instruc-
tiomTbe relieved from the obligation of deciding for
himself, under that pressure, whether the responsibility
of proclaiming martial law is or is not greater than that
of refraining from doing so.'

This despatch has probably led to the repeal of all
colonial acts under which a standing power is conferred
upon the governor to proclaim martial law. Such acts
were in existence in Antigua and Bermuda, and pre-
sumably in Jamaica also. p This will materially diminish
the opportunities for the abuse of this power in the
event of sudden outbreaks, and necessitate an imme-
diate recourse to the local legislature, either for the
purpose of obtaining authority to proclaim martial law,
or for indemnity for acts done in anticipation of such
authority. Moreover, in addition to the above-men-
tioned despatch, confidential instructions q have been



Circular despatch to colonial in the case of Gov. Eyre, in June

governors, Com. Pap. 1867, v. 49, p. 1868.

3 ( J. r ,. Queen v. Nelson and Brand, p. P Hans. D. v. 188, p. 904.
74, n. Mr. Justice Blackburn's charge 1 Ib. v. 188, p. 1724.



CONCERNING THE ARMY AND NAVY. 663

sent out by the Colonial Office to colonial governors
for their guidance in case of insurrection or emergency
beyond the reach of ordinary law. But it is thought
that it will be necessary to have some further legisla-
tion on the subject, in the way of giving larger powers
of arrest in cases of necessity/

Forsyth, in his ' Cases and Opinions on Constitutional
Law,' after reviewing the confused and conflicting
opinions that have been expressed on the subject, 8 says :
4 The right conclusion of the whole matter seems to be
this : martial law may be justifiably imposed as a ter-
rible necessity, and an act of self-defence ; under it
there is a suspension of civil rights, and the ordinary
forms of trial are in abeyance. Under it a man in
actual armed resistance may be put to death on the
spot by anyone acting under the orders of competent
authority ; or, if arrested, may be tried in any manner
which such authority shall direct. l3ut if there be an
abuse of the power so given, and acts are done under
it, not bond fide to suppress rebellion, and in self-defence,
but to gratify malice, or in the caprice of tyranny, then
for such acts the party doing them is responsible.'*

All ministers of the crown, through whose instru- Ministers

1-1-111-in respon-

mentality resort should be had under any circumstances sibie for
to martial law, are responsible to Parliament for their t
conduct, and must be able to justify the necessity for
their acts under penalty of censure, removal from office,
or impeachment, if it should prove upon investigation
that their proceedings had been uncalled for or un-
warrantably severe."



' Hans. D. p. 268. For precedents strictions upon the crown in pro-
of tbe proclamation of martial law in claiming martial law, see Law. Mag 1 ,
the colonies from 1805 to 1863, see v. 12, p. 170, on Martial Law in
Clode, Mil. Fore. v. 2, p. 481. Australia ; and articles on Jamaica

5 Pp. 188-214. case, in The Jurist, for Jan. 6, April

* Ib. p. 214. See Clode, Mil. Fore. 7, June 30, July 21 and 28, 1866.

v. 2, ch. 18. And see the evidence given by the

u Hans. D. v. 184, pp. 1803, 1893. Attoy.-Gen. for Jamaica. Com. Pap.

For arguments on constitutional re- 1866, v. 31, p. 331.



654



THE ROYAL PREROGATIVE



Jamaica
case.



Preroga-
tive of
mercy.



In 1865, a royal commission was appointed to enquire into the
circumstances under which martial law was proclaimed by Governor
Eyre upon the breaking out of an insurrection in the island of
Jamaica. In consequence of the report of this commission, Governor
Eyre, who had previously been suspended, was removed from office,
on account of his having sanctioned an excessive and unjustifiable
severity in the suppression of the insurrection ; although, at the
same time, praise was awarded to him for the skill, promptitude,
and vigour he had manifested during its early stages. This report
was laid before Parliament ; and met with general approval/

Ministers afterwards assured the House of Commons that en-
quiry, with a view to punishment, should be made into any grave
excesses of severity, by any officers, civil, naval, or military, who
were engaged in suppressing this insurrection. They agreed at the
same time to a resolution ' that this House deplores the excessive
punishments which followed the suppression ' of the said distur-
bances, ' especially the unnecessary frequency with which the punish-
ment of death was inflicted. ' w The steps taken by ministers in
fulfilment of the foregoing pledge were explained to the House early
in the ensuing session. * Her Majesty, by the advice of successive
ministers, declined to confer on Mr. Eyre the Order of the Bath,
and he was refused another appointment.* But he was allowed the
usual pension for past service. 2

Royal Prerogative of Mercy.

We have next to consider the prerogative of mercy,
which is a peculiar attribute of royalty, and is vested,
by statute, in the sovereign of England.* All criminal
offences are either against the Queen's peace or against
her crown and dignity. She is, therefore, the proper
person to prosecute for all public offences and breaches
of the peace. Hence her prerogative of pardon,
whereby she is empowered to remit or mitigate the
sentence against a criminal or criminals, who have been
guilty of treason or other felonies ; for it is reasonable
that that person only who is injured should have the



T Rpt, of Jamaica Com", Com. 1872, v. 43.



Pap. J866, v. 30, 31; Hans. D. v.
184, p 1763; v. 189, p. 1437.



Hans. D. v. 225, p. 813.

27 Henry VIII. c. 24, 7 & 8



Hans. D. v. 184, pp. 1794, 1 839. Geo. IV. c. 28, 13. See Holt, King
* Ih. v. 186, p. 275. v. Parsons. 1 Shower's Rep. p. 283.

' lb. v. 212, p. 827. Com. Pap.



IN PARDONING OFFENDERS. 655

power of forgiving. But this, like every other prero-
gative of the British crown, is held in trust for the
welfare of the people, and is exercised only upon the
advice of responsible ministers. 1 * It is, moreover, sub-
ject to the control of Parliament, which has more than
once interfered by statute to limit and restrain the
effects of a royal pardon.

Inasmuch as the corruption of blood, and the con-
sequent disability of the heirs of an attainted person to
inherit property, which results from an attainder, can
only be removed by Parliament, it has been sometimes
necessary for the sovereign to invoke the assistance of
Parliament to give effect to the royal clemency towards
political offenders, or their descendants ; or to sanction
the introduction of particular Bills into either House
for that purposed But a general act of grace and
pardon for political offences originates with the sove-
reign, by whom it is first transmitted to the House of
Lords. It is received with peculiar marks of respect
by the Houses of Parliament. It is only read once by



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