§ THE EARL OF MALMESBURYsaid, he wished to ask the noble Lord the Secretary for War whether he had received any opinion from the law officers of the Crown with respect to a point which had been discussed in the House the other night—namely, whether militiamen enlisted under the Act of 1852 were legally bound to serve under the Act of 1854, under which the militia was to be embodied for five years, although they had not been re-attested under the latter Bill?
§ LORD PANMUREIn reply to the question of the noble Earl, I beg to state that since the discussion took place in this House with reference to the militia, I have learned by experience how dangerous it is to discuss in this House matters affecting 949 the rights of soldiers, which may be the means of exciting in their minds an unwarranted impression with respect to the rights which they can fairly claim. Now, that has been the case in the present instance, and very great inconvenience has thus arisen; inasmuch as, immediately after the debate in this House was made public, the soldiers in several militia regiments—whether acting on their own views of the matter, or whether on the suggestions of others, I cannot say—but the soldiers of several militia regiments absolutely declined, on being called out, to serve any further, and, in fact, laid down their arms; and many of them refused to be obedient to discipline any longer. I must, however, do those men the justice to add, that immediately on remonstrances being addressed to them by their commanding officers, and the impropriety of the course they had taken being pointed out to them, they resumed their duties, and agreed to wait for further instructions from the Government. I never had any doubt myself that, as the law stands, no militiaman who was enrolled under the Act of 1852 had any claim whatever to be exempted from the embodied service required by the Act of 1854; and I have been assured by the highest legal authority which it was in my power to consult, that every militiaman now serving under the Act of 1854, whether enrolled in 1852 or in 1853, or subsequently to the passing of the Act of 1854, is legally compellable by law to serve in the embodied militia. That is, distinctly and unequivocally, the effect of the law as it now stands. But there is another point which was mooted the other night for our consideration. It was stated that when the Act of 1854 was passed by Parliament, a pledge was given and an understanding come to that the men who had been enrolled in 1852 were to have the option of being attested or not for service under that Act. Now, if any such engagement was entered into, I am one of those who think that, whether it was right or wrong, prudent or imprudent, that should it have been contracted on the part of the Government with the soldier, it ought to be religiously observed. It is my duty, therefore, when the men of the militia obey their commanding officers, and submit to the law as it stands, to ascertain how far that engagement has been made, and to keep it on the part of Her Majesty's Government.
§ THE EARL OF MALMESBURYsaid, he entirely agreed with the noble Lord in the 950 abstract principle that it was inconvenient to have discussions in that House affecting the discipline of our soldiers. But he could not regret that this subject had been brought under their notice last year and upon a recent occasion; because the first object of every one must be to see that justice should be done to the soldiers of this country, and that any point upon which doubts existed should be clearly ascertained. It now appeared, from the opinion given by the law advisers of the Crown, that the men enrolled in 1852 and 1853 were legally bound to serve in the embodied militia. Those men must, therefore, clearly understand what their duty was, and would, he believed, faithfully discharge it; and he was on that account heartily glad that the discussion of this question had been raised.
§ LORD PANMUREsaid, he ought to state that he had ordered a circular to be addressed to the colonels of militia regiments and the lords lieutenant of counties, requesting them to make known to the men of those regiments the facts of the case as he had just explained them.
§ EARL GREYagreed with the noble Earl (the Earl of Malmesbury) that great advantages had followed from the public discussion of this question, for nothing was more calculated to injure the militia and the army than the impression that justice and good faith had not been observed towards them. In this case there was no doubt as to what good faith and justice required. The militiamen in question had been enrolled under particular Acts of Parliament, and they had a right to think that their obligation to serve was strictly limited by those Acts; yet, without their consent, another Act of Parliament had been passed, altering the terms of their agreement. He took objection at the time to the obvious injustice of the proceeding; and he was distinctly told in answer that any injustice would be remedied, because no man who had been enrolled under the former law would be required to incur more onerous obligations than he had formerly taken upon himself. He thought there had been great negligence on the part of the Government of that day in not doing what the noble Lord had now done; for they ought to have issued a circular to lords lieutenant and colonels of militia regiments, informing them that the men could not be called upon to serve without their consent beyond what they had agreed to. What had oc- 951 curred would, he hoped, be a caution to their Lordships, and to the other House of Parliament, never to consent to an Act of Parliament under which injustice might be done to the troops, from any assurance on the part of the Government that that power should not be abused, and to take care that in cases like the present a clause should be put in to prevent the Act from being retrospective. This was the moral to be drawn from the former discussion, and not that it had been inconvenient to the public service.
LORD BROUGHAMwas rejoiced that this matter had been set right, and had only one word to add to the proposition of the noble Earl (Earl Grey). He wished to make it more general, and to say that, not only should no act of Parliament be passed on the understanding that some other Act should be afterwards passed, in which the military were concerned, but that this should be the general rule in legislative proceedings.
§ LORD BATEMANsaid, before this matter was closed, he wished to put a question to the Secretary for War. He wished to know if by chance any man in a regiment resisted being re-attested, he was liable to be retained in the service.
§ LORD PANMUREsaid, that if the regiment was embodied by the law as it stood, every man was compelled to serve.
§ EARL GREYsaid, if he understood the noble Lord (Lord Panmure) he had given an engagement that the men enlisted before 1854 might be relieved from a greater service than that for which they had voluntarily enlisted.
§ LORD PANMUREI said that all engagements made with the militiamen enlisted in 1852 would be religiously kept.
§ EARL GREYwas sorry he had misunderstood his noble Friend. His belief was that no man under the Act of 1852 could be required to serve more than fifty-six days in the year, except in case of invasion, and the colonels had got many of them to volunteer on the faith of that pledge. He stated when the Act of 1854 was brought in that it was unjust to alter the terms of the engagements of those men who had voluntarily enlisted; but he was assured that the power would not be used, and he withdrew his opposition to the Bill. He now regretted that he had not pressed the insertion of a clause providing that no man enlisted under the Act of 1852 should be called on to perform any other service than that which they had then voluntarily un- 952 dertaken. He begged now to ask his noble Friend whether or not he had made it known that any man who had been enrolled under the first Act, if unwilling to renew his engagement of service, should have his discharge or leave of absence, so that no greater amount of service should be extorted from him than such as he had voluntarily engaged to perform.
§ LORD PANMUREsaid, that he had stated that he would adopt whatever means seemed to him right to keep faith with the militiamen, but he did not say whether it should be by leave of absence or discharge. He had said distinctly that he would keep faith with the men, and that he would not require from them more service than they had engaged to perform; but with reference to the exact means to be adopted, he must refrain from stating them. He pledged himself to keep faith with the men.