THIRD READING. (Hansard, 13 March 1862)

§ MR. HENNESSY
said, the Minister who had charge of this Bill described it, on the second reading, as a matter of little moment; but he differed in opinion from the right hon. Gentleman, for he thought this measure one of great importance. He believed Her Majesty already possessed ample powers to accomplish the object which the Bill had in view, by Her Royal warrant; and if that were so, the Bill was not only unnecessary but dangerous, because it invaded the Royal prerogative. He begged the attention of the House to what Lord Coke had said on the subject of commissions—namely, that they were of two classes, those which sprang from the Royal prerogative, and those which sprang from the statute law. Now, Commissions in the army and militia belonged to the former class. They are pure prerogative commissions. In the second volume of Blackstone, there is a passage illustrating this— When Charles I. had, during his northern expedition, issued commissions of lieutenancy and exerted some military powers, which, having been long exercised, were thought to belong to the Crown, it became a question in the Long Parliament how far the power of the Militia did inherently reside in the King, being unsupported by any statute, and founded only on immemorial usage. The question became at length the immediate cause of the fatal rupture between the King and his Parliament; the two Houses not only denying this prerogative of the Crown, but also seizing into their own hands the entire power of the Militia. On this usurpation by the two Houses of one of the most important functions of Royalty, Mr. Hallam remarks— The notion that either or both Houses of Parliament, who possess no portion of executive authority, could take on themselves one of its most peculiar and important functions was so preposterous that we can scarcely give credit to the sincerity of any reasonable person who advanced it. And he adds— The power manifestly resided in the King. Again, the Royal prerogative is laid down 1483 distinctly in the preamble to the 13th Chas. II. c. 6, which declares that— This power ever was and is the undoubted right of His Majesty and his Royal Predecessors, Kings and Queens of England; and that both or either House of Parliament cannot nor ought to pretend to the same. Now, as military commissions are not statutory—as it is evident that they are issued solely by Royal Prerogative—the question arises whether any statute is required to give authority to direct the issue of such commissions in any manner the Sovereign may deem proper. On the 27th of May, 1830, Sir Robert feel informed the House of a precedent on this subject, which is extremely interesting at this moment. He said— In the fifth year of the reign of Queen Mary, Her Majesty, in consequence of the great labour which she sustained in the government of the Kingdom, was unable without much danger and inconvenience to sign the commission, warrants, letters, missives, and other papers, and she therefore appointed certain persons, and gave them authority to seal the necessary instruments instead of the Queen. These persons were the Archbishop of York, the Lord Chancellor, the Master of the Horse, the Chancellor of the Duchy of Lancaster, and the Chancellor of the Order of the Gaiter. No doubt this patent of Queen Mary was framed on an example in her father's reign. A patent of Henry VIII. (which may be seen in the British Museum) gives power to certain persons named therein, to use a stamp bearing the impress of the Royal signature to warrants, and it is stated in the patent that it is given for a limited time and for the Royal convenience.
Amongst the other Royal warrants which are not statutory are those relating to the care and custody of lunatics. This is a well-known branch of the Royal prerogative. In Mr. Chitty's work on the Prerogative of the Crown, he says— This prerogative is generally, but not necessarily exercised by the person who has the custody of the Great Seal. It may be delegated to any other person, and even when granted to the Chancellor, as it almost universally has been, a special authority under the Royal sign manual seems necessary, for such authority does not appear to form part of the Chancellor's general jurisdiction. This warrant confers no jurisdiction, but merely a power of administration. Now, this delegation of the Royal authority by a warrant under the sign manual, and not by an Act of Parliament, is exactly a case in point, and he (Mr. Hennessy) would be surprised if any answer could be given to the conclusive precedent furnished by that warrant, which runs thus— 1484 VICTORIA R.—Whereas it belongeth unto us in right of our Royal prerogative to have the custody of lunatics and their estates, they being in our immediate care, commitment, and disposal, which doth occasion multiplicity of suitors and addresses to our own person; we, therefore, for the ease of ourself and of the said suitors, do by these presents give and grant unto you full power and authority, without expecting any further special warrant from us, from time to time to give orders and warrants for the preparing of grants, and thereupon to make and pass commitments. And for so doing, this shall be your warrant. Given at our Palace of Buckingham House this 16th day of July, 1841, in the 5th year of our reign. The hon. Gentleman referred to certain other Royal warrants issued during the reign of the Georges, as well as during the reign of Her present Majesty, for the purpose of showing that the Grown by its own prerogative, and without Act of Parliament, had at various times authorized Commissioners to affix their signatures to documents otherwise requiring the sign manual. He called attention to the warrant of 1719, which runs thus— GEORGE R.—Whereas we have determined speedily to go in person beyond the seas, and we therefore by the advice of Our Council have constituted and appointed the said Lords Justices to execute the office of guardians and justices; and our will and pleasure is that all writs, letters patent, commissions, and other instruments or writings, which should, or ought to have or bear teste by or under ourself, shall bear teste in or under the name of the first for; the tame being of the said guardians and justices. He dwelt upon the warrant of the 6th October, 1854, which not only regulated commissions in the army, but even the pay of the officers. He was informed that the Government relied upon various Acts of Parliament as sanctioning the course they had now adopted. The principal Act, of course, would be that of the reign of George IV, passed in 1830. But in its scope and its form, as well as in the procedure with regard to it, that Act totally differed from the one which the right hon. Gentleman thought proper to introduce. There had been a message from the King, stating that he was physically unable to sign his name, and recommending something to be done. The Royal message was responded to by an address from both Houses complying with His Majesty's gracious recommendation, and the day following the Bill giving effect to the new arrangement was introduced by the Lord Chancellor. That Act of George IV. applied to every exercise of the sign manual, whether in respect to statutory or prerogative commissions, and 1485 therefore the Act of Parliament was necessary; but the present Bill did not touch commissions effected by statute, but only such as sprang from prerogative. If, in everything touching the issue of commissions, the Crown had from time to time by numerous warrants vindicated the prerogative, ought that House now to consider a Bill such as this? Why should they now be discussing a Bill which professed to give to the Queen a power which she and her predecessors had exercised, and which he hoped her successors would continue to exercise? Under all the circumstances, he ventured to ask that the same course should be pursued in this instance as was adopted in the reign of George IV.—namely, that the question should be referred to a Select Committee, that precedents should be carefully examined, and that so delicate a matter as the Royal prerogative should not be dealt with in a hasty and imperfect manner. "With that object he moved that the Bill should be recommitted.

SIR GEORGE LEWIS
said, he could not say that the hon. Gentleman was ipsis Hibernis Hibernior, but he was more Royalist than the King, for he set himself up as the champion of the Queen's Prerogative against the Queen's Government. He sought to show that Parliament ought not to legislate upon the subject, and that in passing the Bill they might invade the prerogative of the Crown. The second section, however, provided that nothing contained in the Act should interfere with the power of Her Majesty to sign military commissions if she should be so minded, and therefore there could be no diminution of the Royal prerogative. The argument of the hon. Gentleman was that the Queen could alter the practice by Her prerogative, and therefore it was superfluous to make the change by a Parliamentary enactment. He could easily satisfy the House that that opinion was unfounded. It was an error to suppose that military commissions were not as a rule signed by the Sovereign. As long as there had 1486 been an army in the country, it had been the unvarying practice for every military commission—not naval commissions, which were only signed by the Lords of the Admiralty—to receive the signature of the Sovereign; and it had been more than once decided by Lord Ellenborough at Nisi Prius, and was then settled law, that for a military officer to prove his character it was necessary that he should produce his commission, and that the mention of his name in the Gazette was not sufficient. The passage in the warrant to the Secretary of State to which the hon. Member had alluded referred only to the countersigning by the responsible Minister, which was necessary whenever the sign manual was used, and gave to the Secretary of State no power to sign military commissions. The argument of the hon. Member, if it meant anything, meant that it was competent to the Crown to make the change, and that it was unnecessary for Parliament to legislate upon the subject. Now, it happened that there had been a series of Acts of Parliament legislating upon that very matter; and if the Crown had possessed the prerogative of dispensing with the signature of commissions, those Acts would not have been needed. Originally all commissions lapsed on the death of the Sovereign who had granted them, but by the Act 7 & 8 Will. 111. c. 27, s. 21, which was passed in an excellent constitutional period, it was provided that in future that should not occur. By another Act passed in the first year of the reign of Queen Anne, it was provided that commissions for civil or military employments should continue for six months after the death of the Sovereign. Then came the Act passed in the 11th year of the reign of George IV., to which the hon. Member had referred. That Act was passed nearly at the end of the life of George IV., when he was incapable of signing his name; and the reason why there was in that case a message to Parliament was, that the incapacity to sign was general, and did not apply only to military commissions. But military commissions were included in that Act, which, had the King had the power to dispense with the sign manual, would have been wholly unnecessary. He might further observe that in the Act of the present reign, entitled an Act for the Continuance of Military Commissions, notwithstanding the demise of the Crown, the following words occurred:— 1487 Whereas great inconvenience resulted on the demise of the Crown with respect to the renewal of military commissions, be it enacted that all such commissions continue in force until cancelled. That provision appeared to him to be quite decisive of the point at issue; and having shown that the statements of the hon. Gentleman were contradicted by a long course of precedents, he trusted he need say nothing further in order to secure the sanction of the House for the Bill.

§ MR. NEWDEGATE
said, he wished to ask the hon. and learned Attorney General whether what was termed the submission list was not in reality, when it received the sign manual, the effectual authority. All that the Bill did was to give effect to that authority.

SIR GEORGE LEWIS
said, he would answer the question. The Commander-in-Chief submitted the names of persons whom he recommended for commissions. Her Majesty placed her sign manual at the top of the list if she approved of it, and there were written directions at the bottom to the Secretary of State to issue commissions to the persons named, and she signed that also.