HC Deb 10 August 1871 vol 208 cc1383-419

Order for Consideration of Lords Amendments read.

Motion made, and Question proposed, "That the said Amendments be now taken into Consideration."


Sir, I wish to call attention to a circumstance connected with this Bill, as it comes down to us amended from the other House, which I think I have never observed before, and which I think ought not to pass unnoticed. I find that the consideration of the Bill as we sent it up to the House of Lords has been changed, and another consideration inserted in its place. I do not know at this moment that I can recall a similar case in my experience. The House of Commons consented to the levying of a considerable burden on the people for a consideration described in the 1st clause of the Bill as we sent it up to the Lords. I find that clause is struck out, and instead, in the Preamble a Royal Warrant is recited, which appears now to be the consideration of the Bill; and I am aware of no case in which the consideration of a Bill sent up by this House to the other House has been entirely altered and another inserted. We know very little—we have no authentic record—of what occurred in the House of Lords on this Bill. A certain statement was made in this House by the Minister; but it was an accidental statement. While the Bill was in progress in the House of Lords, or after some vote, I believe, had been arrived at there, very important information was given accidentally and casually to this House, not by a formal statement from the Minister, as might have been expected, but in answer to a Question, at the time when Questions only are asked, and when there is no opportunity for debate, even if notice has been given. On that occasion, if I remember rightly, the Minister informed the House that Her Majesty had been advised to take a certain step under a statutory power—that Her Majesty had issued a Warrant, as the right hon. Gentleman said, under a statutory power. The Warrant was not laid on the Table until several requests had been made for it, and then Her Majesty's Ministers consented to produce it. Now, the original consideration inserted by the House of Commons having been omitted from the Bill and a Royal Warrant substituted for it in the Preamble, it appears that that Royal Warrant was not issued under a statute. It seems to me that these are changes which require the attention of the House and demand some explanation from the Government. If Her Majesty was advised by her Ministers to issue a Warrant under a supposed statutory power, and Her Majesty did not possess that statutory power, the Ministers — of course unintentionally — deceived their Sovereign. And if that representation was made to the House of Commons, equally, of course, unintentionally, they deceived the House of Commons. But there is another alternative, a grave one, and I think requiring the consideration of the House. Assuming, as now appears by this Bill which comes from the House of Lords, that a Royal Warrant has been issued, and has not been issued under a statutory power, as we are under the impression we were informed by Her Majesty's Ministers the Queen had been advised—supposing that this Royal Warrant, as appears in the Bill sent from the Lords, was not issued under a statutory power, a very grave question might then arise touching the Privileges of this House, and we should have to consider whether, after a Bill has passed this House and has left this House, the most important provision in it should be struck out and withdrawn from the discretion of Parliament by any Proclamation or Royal Warrant. That is an alternative for us to consider. But, in fact, we are in the dark on this subject; we have, in a most serious affair, no authentic record of what the Lords have done. Something has passed in the House of Lords of a remarkable character, for the Bill that we sent up to them in the form we did comes to us in the form in which we now see it. We have never had from the Minister a statement on the matter of a satisfactory nature. Indeed, the only casual statement we have had is one that involved the subject in apparent inconsistency and mystery. What I think we ought to do is to take some step to obtain authentic information of what occurred in the House of Lords, and it appears to me that the proper step to be taken is to appoint a Committee to examine the Journals of the House of Lords. [A laugh.] An hon. Gentleman receives that suggestion with some derision. Probably he has not sat in previous Parliaments. Questions of this kind were always of great gravity. The last one occurred about ten years ago, I think in 1860, and we had the subject discussed by persons of authority who were qualified to guide Parliament in moments of difficulty. I believe the House will be of opinion that the course which I now recommend is the right one to adopt. It is to appoint a Committee to examine the Journals of the House of Lords, so that we may have authentic information as to what occurred in that House. It is not a matter that would take up much time or lead to any delay. But, whether it would lead to delay or not, it is for us to consider what is the proper course to take, what is the course which has always been taken under such circumstances, and what is the course which is conducive to our dignity, and not only to that, but to the public interest. I know the right hon. Gentleman opposite may say that we have the Votes of the House of Lords transmitted to this House, as our Votes are transmitted to the House of Lords, and that information may be found in those Votes sufficient for our purpose. I would, however, remind the right hon. Gentleman that this is a question which has been well considered by the House of Commons; and that under the advice of one of its most eminent Leaders, the late Lord Palmerston—a constitutional statesman, and one whose name will always be received with respect within these walls—this House came to the determination that it was not justified in acting in so serious a matter as a question arising between the two Houses on information supplied by the printed Votes of the other House. Lord Palmerston recommended the House, therefore, on that as on all previous instances, to act on the Report of their own Committee. I will therefore make, with the permission of the House, a Motion in accordance with the precedent to which I have just referred.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "a Committee be appointed to inspect the Journals of the House of Lords with relation to any proceedings upon the Army Regulation Bill, and to make a report thereof to the House,"—(Mr. Disraeli,) —instead thereof.


Sir, it appears to me that the precedent to which the right hon. Gentleman has referred to is no precedent which can at all be regarded as in his favour. If anything, it is a precedent against him. I understand the precedent is this — that the House of Commons passed a Bill for the abolition of the Paper Duty, and that the House of Lords thought fit to reject that Bill. We consequently heard no more about it; and it was, therefore, necessary for us to appoint a Committee to search the Journals of the other House. Until we had done that, we could have no authentic information before us as to what had actually occurred. The present, however, is not a case in which we have no authentic information. We have only to look at our own Votes and Proceedings, and there we find all about the matter. The House of Lords omitted the clause of the Bill which related to the abolition of purchase, as I apprehend they had a perfect right to do, the clause not being a money clause, and they refer to a Royal Warrant which, they say, was dated the 20th of July, 1871. They then go on to recite what was done by the Royal Warrant, and to state that, in substance, purchase in the Army has been done away with. The only question which can arise, therefore, I apprehend, is whether there is in this any interference with the Privileges of this House. We cannot gain anything by the appointment of a Committee. To do so would be the merest waste of time. The right hon. Gentleman said something as to the question whether the Warrant had been issued under an Act of Parliament or by virtue of the Royal Prerogative. Whichever it was, the question is one which has nothing to do with that which is before the House, which is whether we should consider the Lords' Amendments, which are before us in our own Votes and Proceedings. I hope the House will agree to do so.

Question, "That the words proposed to be left out stand part of the Question," put, and agreed, to.

Main Question, "That the said Amendments be now taken into Consideration," put, and agreed to.

Lords Amendments considered.

Amendment in page 1, line 3, after the word "thereto," insert the words And whereas by Royal Warrant, dated the twentieth day of July, one thousand eight hundred and seventy-one, all regulations regulating or fixing the prices at which any commissions in Her Majesty's Forces may be purchased, sold, or exchanged, or in any way authorising the purchase or sale or exchange for money of such commissions, from and after the first day of November, one thousand eight hundred and seventy-one, in this Act referred to as the said appointed day, have been cancelled and determined, read a second time.

Motion made, and Question proposed, "That this House doth agree with the Lords in the said Amendment."—(Mr. Secretary Cardwell.)


Sir, if Ministers insist on our proceeding to consider, at the approach of midnight, a question so grave and important as that which is raised in the Amendment which stands in my name, it is not for me to shrink from the task I have undertaken—difficult although the task may be. I hope our attention will not be diverted from the real issue by any attempt to make this a Question of Confidence; or that our thoughts will be dissipated upon the merits or demerits, real or assumed, of the Administration. No word shall consciously escape my lips giving colour to such a plea. If the general conduct of Ministers were deemed worthy of censure, some one would have been found to give Notice of his intention to impugn it; and if in this exceptional matter, the purport or tendency of what has been recently done "elsewhere" with the Army Bill were deemed deserving of condemnation by a majority of this House, a challenge would, ere this, have doubtless been thrown down which Ministers could not have failed to accept. But no proceeding of this kind has been initiated. No one has given notice to restore the Bill to the form in which we sent it up to the Lords; or to reject the Bill because in spite of themselves they have been led to submit to its transformation. For myself, I am not about to question the motives or to quarrel with the object of the changes made in the Bill by the Royal Warrant. I took no part in thwarting the abolition of purchase; and after all that has occurred, believing the system doomed, I am bound to say that I think the sooner the controversies growing out of its abolition are finally settled, the better it will be for us all. But these are not, nor is any one of them the subject before us to-night. I am anxious to narrow the question as strictly and definitely as possible; but if, in spite of this sincere desire, I have to trench more than I should wish to do upon the patience of the House, I trust I shall be acquitted before I have done of having abused it. I can but throw myself frankly on your indulgent sympathy in attempting to plead a cause, which, if it be just, is one wherein we are all alike concerned, being all of us, I trust, careful to maintain the rights and privileges of this House uncurtailed and uninfringed, even as they have been handed down to us by our predecessors. The law of Parliament, as recognized and observed by us, is immeasurably more important than the fate of any measure, or the character of any Administration. The law of Parliament, of which we are the special guardians, I hold to be coeval, and in a thousand ways identified with the liberty of England. It was old when we were young, and it will, I trust, be hale with the vigour of youth when all of us have passed away. It is a sacred heritage whose keeping we are not free to neglect, devolve, or abandon. It is a precious possession worthy of our most jealous care. Parties may differ, but honest men and wise men, to whatever party they belong, ought not to differ about the duty of guarding the prescriptive rights of Parliament, as the very core of national freedom. We should forget our duty to the people and to ourselves if mutely we allow the integrity of those usages and customs, rules and traditions of which that law is composed to be set at nought by Monarch, Minister, or multitude. By this, and by no other course of deliberate and consistent conduct can we maintain the dignity, the power, and the authority of this House—its claim to bear rule jointly and co-ordinately with the other Estates of the Realm: for our claim hath ever been, and, I trust, that, it will ever be founded in principle and in practice on this—that no power on earth can make or unmake laws for this nation but the Queen, Lords and Commons, of England, in Parliament assembled.

On the first day of the Session, you, Mr. Speaker, accompanied by many hon. Gentlemen, attended at the Bar of the other House, and there, in presence of Her Most Gracious Majesty, we were told that recent events on the Continent had suggested to the Queen and her Advisers the necessity of re-organizing the defences of the Realm; that without loss of time a Bill would be laid before Parliament for the purpose, and the Sovereign was pleased graciously to add that she felt she "need hardly claim for that measure our early and anxious consideration." We returned to our Chamber and unanimously voted an Address to the Throne, pledging our best endeavours to the legislative completion of the work Her Majesty had invited us to perform. For three months, laying aside the more pressing needs of our constituents, we devoted our time and labour to the elaboration of a scheme for the re-organization of the Army. We thought we had been called on to do so in good faith by the Ministers of the Crown, for we never had been mocked before. We never imagined that expressions not in earnest would be placed in the lips of Royalty to be publicly addressed to Parliament. But I confess I do not know what mocking means if, intentionally or unintentionally, the House, after devoting so much of its time and labour to the Army Bill, finds a document flung upon its Table, by which it is informed that without its aid the very thing has been done under the authority of the Sign Manual to do which our aid had been solemnly asked for as indispensable by the Queen; by which we are told that we are legislative fools for our pains, and that nothing remains for us but to pay the bill. All this may be capable of explanation, and if so, we hope it will be explained; but the present is the first moment since the Royal Warrant was issued, in which the subject has been mooted in this House, while no attempt at explaining or defending it has hitherto been made. The right hon. Gentleman (Mr. Disraeli) has asked for a Committee to search the Journals of the House of Lords. If I am not much mistaken, that Committee, if it had been appointed, would have found something which the right hon. Gentleman the Secretary of State for War seems to have altogether overlooked. Something tells me they would have found a very significant explanation of the conduct of the other House in sending down a Bill which is neither their Bill nor ours. The Lords, if they could have helped it, would never have sent down the Bill with the interpolated Preamble and the emasculated clauses we are now called on to consider. What is this Bill? Not the embodiment of the opinions to which the House of Commons spent three months in giving effect in the form of a legislative measure; but a novel, questionable, and unconstitutional substitute for what, by large majorities, this House declared to be necessary and expedient for the better regulation of the land forces of the Realm. This House must have greatly degenerated from that character and spirit which it inherited from its predecessors if it takes the mere ipse dixit of a Minister, or even the sudden edict of our most gracious Sovereign as a legal, adequate, or satisfactory substitute for the result of its labours. I claim for this House co-ordinate and equal rights in legislation even with the wearer of the Crown. I know of no custom or law which says that the privileges of any part of the community are to be taken away except by the consentient will of Queen, Lords, and Commons; yet here we have a recital that what our advice and aid was asked to accomplish has suddenly and summarily been consummated without our aid and counsel, and by the exercise solely of an obsolete power in the Executive, which is said to have been resuscitated for the occasion. Whether by custom or by statute, it is truly said by our great jurist that— The just limitation of the Prerogative is indeed essential to the idea of political or civil liberty. Mr. Hallam states that— There is not a single instance from the first dawn of our constitutional history, where a Proclamation or Order in Council has dictated any change however trifling in the code of private rights or in the penalties of criminal offences, and speaking of the armed forces of the Realm, he says— The concurrence of the whole Legislature is deemed requisite to place so essential a matter as the public defence on a secure and permanent footing. I therefore deny that it is open to the Government to legislate by Warrant. The House of Commons having done all that a Legislative Assembly could do to elaborate a scheme for the abolition of purchase, it is not for a Cabinet Council of some 14 or 15 Gentlemen, sworn not to reveal what passes at their deliberations, to dispose of the matter by framing a Royal Warrant. In support of this view I will not appeal to any recondite arguments or obscure instances; I will simply ask the House of Commons to look back upon its own history. The Prerogative of the Crown is talked of, but I entirely deny that there is any such power inherent and prescriptive in the Sovereign as by some seems to be supposed. Prerogative is a defective noun, used by the best authorities only in the plural. There are Prerogatives—some dead, some living—but anything like one general and unlimited Prerogative, which may be used or not at the bidding of a Minister, forms, I submit, no part of the English Constitution. The Queen has Prerogatives of two kinds—legislative and administrative, and the distinction between them is plain to the humblest comprehension. Legislative acts are public acts. When Her Majesty, in a Speech from the Throne, invites Parliament to take a subject into consideration, that is a public act; and when she assents to a Bill submitted by the two Houses, that likewise is a public act. When we in turn debate any subject, on which we think it necessary to address the Crown, Her Majesty is fully informed of the feelings and opinions of the people, legitimately and publicly expressed by their representatives in this House, and she therefore cannot be taken unawares. Legislative acts are public acts, but administrative acts are from their nature wholly different in kind. They are not debated here in the first instance. They are confidentially advised by the Minister at the peril of condemnation by either House, and that is a sufficient check in all ordinary cases. What I object to is, that the two things should be so confused that an administrative act should be substituted for a legislative exercise of a Sovereign function, and that by Warrant this House or the other House should be compelled to legislate without or against its will. As for dormant Prerogatives, I have heard of late a good deal of free and easy talk in high quarters on that subject with amazement. I do not like a Prerogative that walks in its sleep, and I do not think much of the idle curiosity or the vulgar interest shown by some in seeing it wander too near the edge of danger. Prerogative had better be in bed than be called up suddenly in the dark, and set to tread its perilous and mazy way towards the brink of the abyss. I believe that Prerogatives, like ourselves, must be regarded either as living and responsible, or as dead and beyond recall; and I do not understand investing them with a double character. For 160 years the Prerogative that once affected to organize and regulate the Army at its will has lain what you term dormant. We believed it dead, and dead we hold that we were entitled to consider it. It was not wise to summon it from its resting-place, and try to make believe that it can walk the earth again. Your Warrant is bad in point of constitutional law, it is worse in constitutional policy; but it would be worst of all if it were suffered to become a constitutional precedent whereby the rights, interests, and investments of any great class of the community should be decided at a blow by Prerogative in the middle of a Session. I wish to bring this matter to the test of your own historical experience. Parliaments die in point of law; but, historically and constitutionally, Parliament never dies. We are the legitimate successors of those who went before us, and it would be an evil day for us should we ever begin to think so much of ourselves as to forget the lessons of history. It may be remembered that a Prerogative once was claimed and exercised by the Crown on a matter affecting specially the composition of this House. Between the reigns of Henry VIII. and Charles II. 180 Members were summoned to this House by the mere exercise of the Prerogative alone. Warrants in the form of Charters were sent down, and Members were returned at the will and caprice of a Minister, and 180 seats were filled in that way previous to the Revolution. The last time the experiment was tried a Charter of enfranchisement was sent to Newark, which thereupon returned two Members. In the following Session Mr. Sacheverell, rising in his place, warned the Speaker that there were strangers within the Bar; the Speaker called upon Sir Paul Neale and Mr. Saville to retire; they asked audience, which was refused. Ah! there was a spirit in Parliament in those days. The two Gentlemen were sent below the Bar, and told that they might petition to be heard by counsel. They were heard, and, debate arising, it became a question whether they were to be admitted or not, and the House took a wise course, exactly such a course as I would have you take now. They refused to admit intruders who had come in under a Royal Warrant; but to avoid a collision between the Commons and the Crown, they ordered a Writ to be issued for Newark, which from that time sent its Representatives by Parliamentary sanction. The House of Commons refused to have Members sent at the capricious will of the Crown. It did not grudge any rising town Representatives; but it did grudge the Administration of the day the right to choose and dictate what places should have Representatives. Have we less self-respect among us than a Parliament of Charles II.? In the present instance what has been done is done, and cannot easily be undone. But we are not minded to be querulous with our Queen. If in the belief—a belief in which she ought not to have been left, Her Majesty supposed that she was exercising only a statutory jurisdiction, this Warrant has been signed—well, let it be so, only let us take care that the like shall never happen again. I have no objection that we should acquiesce in the Amendments of the Lords, provided that acceptance is not by implication made to compromise the dignity, honour, and independence of this House; but I would protest against it as the Commons of 1676 did against the Newark Charter, by marking the fact, and taking security that it shall not be drawn into precedent for the future. As our Code of Standing Orders does not in set terms forbid such interference by the Executive Government, with the legislative conduct of affairs, I respectfully submit that we should carefully and guardedly make such an addition to that Code as may prevent such a case as the present arising again, by giving standing notice that whenever a Bill is returned to this House which bears upon it the marks of having been tampered with unconstitutionally, or altered save by the free votes of the other House, we shall decline to take it into our re-consideration. There was another Prerogative of the Crown which is now never exercised — that of the Veto. When and how did it die? William III. by the advice of his Ministers rejected a Place Bill, which had been passed by both Houses after long discussion, and it was one affecting the honour and independence of this House. Parliament did just what was necessary and no more; they vetoed the Veto, as I hope this House will declare this Warrant to be unwarrantable. The House of Commons addressed the King, not disputing his authority, but praying His Majesty not to be so ill-advised as to exercise the power in future, because they felt that the growing independence and dignity of Parliament were incompatible with the exercise of a power which, when you have responsible Ministers, is unnecessary for the working of the Constitution. William was too proud and too ambitious a man to succumb on the spot; he sent an evasive Answer to the Address; but from that day there has been no Veto. The House did what was necessary; it accepted the fact and provided for the future. This is exactly what I want you to do, by adopting an additional Standing Order. We have the happiness to live under a Queen who is entitled to our utmost consideration in every act and circumstance of state, and there is no disrespect to the Sovereign in the Commons asserting that independence which will not brook infringement of their privileges, and which enables them the more completely to protect the rights, dignity, and honour of the Sovereign. Everybody admits that statute limits the Prerogative. There is no question about that. The real question and the only question is, whether custom or disuse by lapse of time does not as effectually limit Prerogative as statute law. The Sovereign is bound by the Coronation Oath to govern according to — what? Acts of Parliament only? Nothing of the kind—"according to the statutes and laws of the kingdom." The two things are named again and again in every high instrument of State; laws and statutes, statutes and laws; the two things, the written and the unwritten, the customary and the statutory. Were our fathers blunderers and drivellers when they came to make covenants with their kings? Do you think that after the Civil War, and the Restoration, and Titus Oates, and Jeffreys, and the forfeiture of James, and the calling in of William, do you think that the great men of 1688 were likely to make a fool's bargain with their foreign auxiliary and deliverer? Or is it conceivable that at each succession to the Crown the Prelates, Peers, and Gentlemen of England standing at the altar of Westminster, should put into the mouth of each Sovereign idle or unmeaning words to mark that solemn contract, the forfeit of which on either side must be liberty and might be life? The thing is preposterous. Our whole system of rule and order, property and freedom, rests on this hallowed and hitherto unquestioned fact—that the powers of the Crown, or what you call its Prerogatives, are to be exercised only within the meaning and limits of the customary laws and written statutes of the Realm. In the same reign Prerogative was again exercised and dealt with by the House. In 1693 a Royal Warrant was issued to abolish purchase in the Army. If ever there was a time when it would have been permissible and praiseworthy for a Sovereign to clutch at power for the common safety, it was in that dreadful year. Treason was everywhere; the land was full of counter-revolutionary plots; it was a matter of notoriety that the majority of the Bar, the clergy, and the landed gentry were in correspondence with St. Germains; the Secretary of State (the Duke of Shrewsbury) was paltering with the exiled Court; and, worse than all, the greatest soldier in the Realm had sold the blood of his own troops to the French, and had given information by which the expedition to Brest was discomfited. If ever Monarch was justified in seizing power to have the Army honestly and faithfully officered, it was in that trying emergency; and under similar circumstances, I do not believe there is a man in this House who would find fault with a Minister for advising a like course. There was no fault-finding by the House of Commons of that day; but, unfortunately, the King, by his Warrant, had endeavoured to impose on the officers of the Army an oath which he had no right, no power, no jurisdiction, no legal or constitutional authority to impose. Within two years he was glad to send down to Parliament by his Ministers to ask the House of Commons to take the failure off his hands and to do by enactment what he had failed to do by Warrant; and in 1695 the House, by a clause in the Mutiny Bill, imposed an oath against purchase in the Army. Parliament thus cured the defect, and that is exactly what I should be glad to see it do now. I have sometimes been reproached with democratic opinions, and I am content to bear that reproach; but I will never incur the infamy and the odium of seeking popularity at the expense of promoting a quarrel between two branches of the Legislature. Between the Warrant and the clause in the Mutiny Bill, one would have supposed the object was effected; but, after the Peace of Ryswick there was no longer the same occasion to keep down purchase, and it grew up again. In 1706 an attempt was made by the Duke of Marlborough, then at the zenith of his fame, when he had monopolized all authority in the State, to snatch the power of appointment and promotion in the Army by means of a Warrant. But he, too, failed; and only five years afterwards another Warrant was issued regulating the price of commissions, and stating that a certain number of years' service would be necessary to entitle a man to promotion. From the day when, in the reign of Anne, the prices of commissions and the terms of service entitling officers to sell, were regulated by special public Acts, I confidently assert that no vestige or particle of proof can be given that the practice of purchase in the Army was not recognized as a custom of the Realm. I hope we shall not hear of the paltry cases which have been trumped up elsewhere, such as the abolition of chaplaincies by Mr. Windham when Secretary for War. These were mere excrescences on the system, they were the perquisites of the colonels of regiments, and Mr. Windham very properly said that they should cease. A precedent cannot easily be made of that, if it can be called a precedent at all. In our own days Lord Panmure out of the Reserve Fund bought up certain commissions of the Guards without a Warrant or Act of Parliament. He had the fund in his hands, his Colleagues agreed with him, the purpose he believed was good, he bought up the commissions, and there was no debate, discussion, or dispute about the matter, which was hardly known outside the circle of the parties concerned. Then, the Yeomen of the Guard were treated in the same way. Here are the miserable shreds of what are called precedents against a system which has continued for 160 years, by which 19–20ths of the men who bled for their country paid for their commissions and got their money back. A man must quibble if he would make this anything but a custom, public and acknowledged, which when pleaded against in the Courts of Law and of Chancery was ruled to be right, and which until lately I have never heard impugned. This being so, it is part of the law of Parliament that nothing but the consent of the three Estates of the Realm can change or abolish it. I deny the power of this House singly, any more than that of the House of Lords or the Sovereign, to take away that which Lord Louthborough, adjudicating on the subject in the Court of Chancery, declared to be the property of the officers. If that be so, it does not become the Members of this House to be made accessories after the fact against their will to what has been done by Her Majesty's Government, unless they reserve to themselves the discretion to say that in future it shall not be drawn into precedent. With the good object for which it was done and the righteous motives of the men who inspired it, this House has nothing to do. Every bad course of policy in history began with a good object and a righteous motive. It is the ordinary plea for every sin of legislation and administration. If, after three months sequestrated from other public concerns, and devoted to the enacting of this measure, we are to be told that all our labour was unnecessary, because there was a stenographic expedient in the sleeve of the Minister by which he could attain his end in as many lines as it took this House weeks to frame this Bill, that would be setting up a new mode of proceeding in England to which I hope this House will never agree. I do not like shorthand in legislation or short cuts in policy. We have before our eyes a terrible example of what these have done. For 80 years France has been trying shorthand in legislation and short cuts in policy, and, whether at the dictation of a rampant democracy or of an over-ruling Monarch, what has been the result? I shall give two other illustrations in support of my argument. Time out of mind the Crown has exercised its Prerogative in the creation of titles of honour. I know of no statute and of no clause of any statute which can be pleaded in bar of that Prerogative. Well, a Minister whom we all respected, and who led this House with great skill and dignity for years, was recommended by his Cabinet to advise the Queen that she might depart from the usage and custom of the Peerage and create Sir James Parke a Peer for life. What did the House of Lords do? It did not pass a Resolution denying the Royal Prerogative, but simply said—"Outside the Bar is the place of the person who comes to us in a manner contrary to the privileges of this House:" The House of Lords refused to admit him, and Lord Palmerston who was a wise man in his day, thought it an evil quarrel to enter into, and advised the Crown not to contest the point, but to issue a new Patent with remainder to heirs male, and then Lord Wensleydale was permitted to take his seat in the House of Lords. What did the House of Commons do? It did what it was its duty to do—nothing. There were not wanting men in this House—I cannot be mistaken when I see near me the hon. Member for Brighton (Mr. White)—who thought Life Peerages would be an excellent reform of the Upper House. I am not sure that Lord Palmerston, with his influence, and with the spirit of the time in his favour, might not have induced this House to express an opinion in favour of the change. But Lord Palmerston knew too well the line of demarcation between the two Houses; he resisted all suggestions of the kind; he did not interfere between the Crown and the Lords, and to the present time the question remains where it was before. There is another illustration. It will be in the recollection of the House that two years ago a case occurred which brought vividly to the minds of the most experienced Members that there was a great want in our code of privileges—namely, of power to examine witnesses on oath at the Bar and in Committees. There were not a few impetuous friends of the short- cut system who said—"Let us pass a Standing Order; let us assert that it is an inherent right of the House; let us take upon ourselves the rights and dignities of Privilege, and who shall say us nay." But wiser counsels prevailed. A Select Committee was appointed, to whom you, Sir, did the honour of giving testimony and advice, as did your distinguished predecessor (Viscount Eversley), the right hon. Gentleman the Member for North Lancashire (Colonel Wilson-Patten), whose acquaintance with the practice of the House is so well known, and a gentleman at the Table (Sir Erskine May), whose knowledge of Parliamentary procedure is great and extensive, and to whose kindness and readiness to assist the Members of this House we are all so much indebted; and the unanimous opinion of all these authorities was that this House needed the power. Well, the unanimous decision of the Committee and of the House was, that they should frankly say to the Sovereign and the House of Lords that such a power was wanted, and they could not believe that it would be refused. A Bill was brought in on the subject, and only three days ago I had the happiness of knowing that it was read a second time in the House of Lords without a dissentient voice. Therefore, by patience and perseverance, coupled with moderation, anything that is wanting to secure, strengthen, or defend our legitimate jurisdiction and just authority as a co-ordinate branch of the Legislature is certain to be obtained. Whenever, too, the Crown requires anything from this House, there is nothing in reason which it will not cheerfully grant to show its confidence in the dynasty and the Sovereign. I wish to prevent this serious deviation from the Rules and Practice of Parliament being made a precedent. This is not the Bill which we sent to the House of Lords, nor is it their Bill. If, therefore, neither House have assented freely or voluntarily to the Bill in its present shape, it ought not to be put on the Statute Book without a guard. The guard, I ask, is nothing new or unprecedented, but one which I think I have shown has been practically adopted in other times and other circumstances to the great end that the laws of England shall not be changed by Prerogative, or the sudden advice of the Administration, nor until, after deliberate consi- deration, the Commons and Peers of the Realm have freely expressed their views.

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to insert the words "the further Consideration of the said Amendments be deferred,"—(Mr. W. M. Torrens,)—instead thereof.


I did not interrupt the hon. Member in his remarks, thinking he might be speaking to the Motion before the House. He has allowed it to escape his observation that the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) has proposed an Amendment to the effect that the matter he referred to a Committee, and the House has decided that the words proposed to be left out stand part of the Question; that is, that the Lords' Amendments should be considered. Then the Lords' Amendments began to be considered, and the first Amendment has been read, and the Motion that I have to put to the House is, that the House do agree with the Lords' Amendments. It is, therefore, quite impossible that the hon. Member can move the Resolution which stands in his name on the Paper. All that is open to us is to accept or negative the Amendment of the Lords, or to agree to an Amendment which can be engrafted on the Bill.


Can I move the postponement of that agreement?


The Question is, that the Lords' Amendments be now considered. The hon. Member can move the adjournment of the Debate.


I shall move the adjournment of the consideration of the Lords' Amendments.


said, he wished to express his intense gratitude to the hon. Member opposite (Mr. W. M. Torrens) for having so ably brought the subject before the House. He fully agreed with the hon. Member as to the anomaly in the transaction of the business of Parliament to which he had called attention. To what day did the right hon. Gentleman the First Lord of the Treasury think fit to adjourn the consideration of the Lords' Amendments.


The Question is, that the House agrees to the Lords' Amendments, since which an Amendment has been moved to leave out all the words after "that," in order to insert that "the further consideration of the subject be adjourned." The Question that I have to put is, that the words proposed to be left out stand part of the Question.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided:—Ayes 141; Noes 83: Majority 58.

Question again proposed, "That this House doth agree with The Lords in the said Amendment."


I apprehend, Sir, that, whatever may be the decision of the House upon the vote which is now submitted to it, we should hardly feel it satisfactory to come to a decision on so important a matter after what has passed, both in this House and elsewhere, without some statement or explanation on the part of Her Majesty's Government. Sir, it is perfectly within the cognizance of this House that this alteration which we are now considering is an Amendment which was adopted, not only after a serious division upon the question of the second reading of the Bill in the House of Lords, but after the passing through the House of a Resolution of a very unusual character. At the commencement of this discussion my right hon. Friend (Mr. Disraeli) suggested that it might be expedient to appoint a Committee to search the Journals of the House of Lords in order that we might be better acquainted with what passed in another branch of the Legislature, and I apprehend if it had been intended to take any important step in consequence of what has taken place there that would have been the regular course to pursue. But I suppose that, although the House has not considered it desirable to adopt that course, we are not precluded from taking notice of that which has been communicated to us as to the proceedings in the other House of Parliament. There was some discussion in the year 1860 upon a Motion made by Mr. Duncombe for laying on the Table of this House the proceedings of the House of Lords, and he gave as his reason that it would be convenient that this House should dis- pense with the necessity of appointing Committees to search the Journals when it was desirable to take cognizance of proceedings in the other House of Parliament. Lord Palmerston gave his opinion that although it would be convenient to know what passed in the other House, the practice of searching the Journals had better not be withdrawn. And I apprehend it was in reference to that view my right hon. Friend (Mr. Disraeli) suggested we should have a Committee appointed. The House has not thought that desirable. But we are perfectly at liberty to take notice of that very remarkable Resolution in the House of Lords, which was to the effect that the conduct of Her Majesty's Government, in withdrawing from the consideration of Parliament a material portion of the measure which had been submitted to Parliament, while the subject was still under the purview of Parliament, was irregular. That Resolution has been allowed to pass without any notice on the part of the Government in this House, and, what is more, the able speech which has just been delivered by the hon. Member for Finsbury (Mr. W. M. Torrens) is also to be allowed to pass without notice. Now, Sir, there is no doubt that the large majority of the Members of this House have approved of the Bill for the abolition of purchase, or rather—for it is that no longer—the Bill which is called the Army Regulation Bill, and that there is no question it will receive the assent of the House. But that does not absolve us from the necessity of taking notice of the position in which Parliament is placed by the proceedings which I have referred to. The hon. Member for Finsbury, by no means as an opponent of the Bill, takes notice of what has occurred for the purpose of placing on record the opinion of this House with regard to such interferences on the part of the Executive, and whether it is expedient to take such a stop. I think we have a right to ask that those who take the lead, and who are responsible for the conduct of business, and who are the guardians of the privileges of the House of Commons, should either tell us what we ought to do, or give us some reason for the conduct they choose to adopt. We have such an amount of silence as I think is hardly consistent with the duty which a Ministry owes to the House of Commons. Because it must be apparent that the Resolution passed by the House of Lords was not a Resolution affecting the privileges of one branch of the Legislature, but goes to the question of the privileges of Parliament altogether. It was not a question of at what particular time or in what branch of the Legislature the Bill might happen to be, but whether it is consistent with the freedom and independence of Parliament that in the middle of Parliamentary proceedings upon a measure whereon the Crown has consulted Parliament, the matter should be withdrawn from the cognizance of Parliament, and that one branch of the Legislature should be placed in such a dilemma as the House of Lords was placed by the Royal Warrant. What was the effect of that Warrant? You had, submitted to Parliament by the Crown, a measure for the abolition of purchase in the Army, coupled with provisions for compensation. The measure was considered — whether it was desirable to make this great change, and upon what terms; and then, because the measure did not meet with unqualified approval, the Crown settles the chief question; and settles it in such a way that the House of Lords was left the alternative either to accept the measure or do great injustice to the officers. If the House of Lords, on finding the first question had been decided without their consent, had declined to sanction the Bill, innocent persons would have suffered. We shall perhaps be told that this is a question, not for the House of Lords, but for the House of Commons, to settle; and, in fact, one of the hon. Members for Manchester (Mr. Jacob Bright) has already told us that this is a question not of the Prerogative of the Crown, but of the Prerogative of the people, and that the First Minister of the Crown, because he has a large and assured majority in the House of Commons, has ventured upon a step which he would not otherwise have taken. It is important to know whether the Government acquiesces in this view, and whether the House of Commons and the country accept the principle that the exercise by the Minister, having a majority in the House of Commons, of the Prerogative of the Crown, is to take the place in future of constitutional Acts of Parliament? These are points of some importance, and in forming an opinion upon them the House has a right to expect the guidance of Ministers. There is one plea urged on the part of the Government for the course which they have taken. They say—Our attention was called to certain illegal practices. We were in a position to deal with these illegal practices, and it was necessary to put a stop to them; there was a difficulty in doing so by Parliamentary action, and we had not the power to put a stop to them otherwise than by the course we took. But you did more. What was illegal was the over-regulation prices; but you put a stop not only to that, but to the system of purchase and sale of commissions in the Army altogether. I will assume that the Government acted conscientiously in taking the step which was necessary to cure the illegality; but I ask, why they went so much further? Their conscience, moreover, was awakened at a very remarkable moment, for it had previously slept for a great number of years, and did not even appear to be aroused by the Report of a Royal Commission. I am not attempting to argue either in favour of over-regulation prices or of the purchase system. I will not set up my opinion against that of the majority of the House. All I am anxious to press on the consideration of the House is this — A question has been raised of very material importance between the Crown and Parliament, for the precedent of interference which has now been set, unless we take notice of it, may some time or other be used against this House. A Government anxious to cut short what it looks upon as tedious discussions in Committee may say—"We have got your assent to the principle of the Bill; we will now carry out the details by the issue of a Royal Warrant." I cannot see why, after the second reading of the Bill, the Government might not have said—"We will cut short these long discussions and issue a Royal Warrant at once." Unless, therefore, we take our stand, and get a definition of the right and power which Ministers claim under the Crown, and unless we lay down some limits within which that power is to be exercised, we shall be forgetting our duty to the House, to Parliament, and to the country generally. Before the House assents to the Amendments of the House of Lords I think we are entitled to some explanation on this subject.


Sir, there has not been the slightest attempt on the part of the Government to conduct this debate in silence. The vote which they have just given proves their anxiety that the debate should proceed. The Motion of the hon. and learned Member for Finsbury (Mr. W. M. Torrens) was that the further consideration of the Lords' Amendments be adjourned, and the Government voted against the adjournment. I was perfectly ready before the division, and am equally ready now, to describe the exact position of affairs, and to defend, if it be necessary to defend, the course the Government have taken. The right hon. Member for Buckinghamshire (Mr. Disraeli) by the course which he took prevented the hon. and learned Member for Finsbury from moving his Resolution, and it became impossible, therefore, to discuss that question; and we are now considering whether the House shall agree to the first Amendment of the House of Lords. The only objection to the course which the Government have taken is that it has been what the hon. and learned Gentleman calls an illegal course, or if that be too definite, and he cannot find sufficient support for that argument, that the course taken by the Government is what is sometimes called "unconstitutional." I will address myself to both these points. The hon. and learned Member for Finsbury stands almost alone in saying that the course pursued by the Government is illegal. Having carefully perused what passed in "another place," and especially the observations of noble and learned Lords, of whom some occupied a position of settled hostility to the Government, while others were disposed to indulge in that candid criticism which a colleague sometimes passes upon the acts of Friends whom he has left behind him in office, I can say that none of the noble and learned Lords who spoke ventured to assert that the course taken by the Government was illegal. Upon the authority, therefore, of those noble and learned Lords I rely in maintaining the perfect legality of the Warrant. A mere child in law knows that it has been laid down over and over again, in books of authority which it would be pedantry to quote, that the sole regulator and governor of the Fleets and Armies of the country is the Sovereign, and by several Acts of Parliament, and especially that passed on the restoration of Charles II., it was enacted that with the internal government and regulation of the Army neither House of Parliament has, or can pretend to have, anything whatever to do. ["Oh, oh!"] I am astonished to hear any Gentleman dissent upon that point. That Act, or a portion of it, still remains unrepealed, and I am astonished that any hon. Gentleman can doubt such a proposition, or that hon. Gentlemen who uphold the privileges of Parliament should withhold their assent and respect from an Act of Parliament which stands unrepealed upon the Statute Book. I now pass to the broader and more important question whether there has been anything unconstitutional in the action of the Government. I have had some difficulty in finding out what is meant by the word "unconstitutional." The best definition I can find is that given by Hallam, who defines "unconstitutional" as opposed to "illegal," by saying "it is a novelty of great importance which is likely to endanger public law." I undertake to show that there is neither novelty nor danger in the course which the Government has followed. Certainly the Warrant in question is no novelty, for from the time of Charles II. down to that of Queen Victoria there is an unbroken succession of Royal Warrants dealing with the question of purchase without the smallest interference in any degree by the Legislature of the country. The earliest Warrant in the time of Charles II. was issued for the purpose of getting together money to build Chelsea Hospital. The next was in the time of William III. in 1693, which not only abolished purchase, but provides that those who entered the Army should take an oath that they had not purchased their commissions. The Mutiny Act in 1695 imposed an oath respecting commissions. That remained on the Statute Book until the year 1701, when the clause imposing the oath was withdrawn from the Mutiny Act, and from that time it has never re-appeared. In 1701 there was issued a Warrant by which regulation prices were abolished by Royal authority. In the time of Queen Anne there were repeated Warrants altering the regulations for pur- chase in the Army, particularly that of the 11th of May, 1707, which declared that no sale or purchase of commissions was to take place in the Army except by Her Majesty's approbation, signified under her Sign Manual. This continued in force for a short time, and in September, 1711, a fresh Warrant was issued regulating and altering the prices and conditions. There was a very important Warrant in 1721, by which a regular tariff of prices was established by Royal authority in the Army. In 1765 George III. appointed a Board to settle the prices of regimental commissions and to report thereon to the Crown. The Report sent in was accepted, and was confirmed by Warrant on the 10th of February, 1766. Then in 1783, there was a regulation to recover the exchanges from half to full-pay; and there were more regulations in 1793, that being the last date at which there was any important change effected by Royal Warrant in the Army prior to the Statute of 49 Geo. III. in 1809, of which we have heard so much. The statute of 1809 declares that all sales and brokerages of offices are illegal; but from the penalties enacted by the 7th clause persons who purchase in the Army under Royal regulation are exempted. That was the Act of George III. under which the Warrant which we are now discussing was issued. The House will see that down to 1809 there has been a series of Royal Warrants dealing with the question of purchase in various ways, sometimes setting it up, sometimes abolishing it, and sometimes regulating it; but all emanating from Royal authority, and not interfered with by Act of Parliament. In 1809, however, Parliament did interfere, and passed an Act against the sale of offices, but exempted from the penalties of that Act persons who bought according to regulations made, or to be thereafter made, by the Crown. There is no doubt that the Act sanctioned, acknowledged, and gave Parliamentary authority to that which had existed before for more than a century, and there is also no doubt that if it had not existed before, the Statute of 49 Geo. III. would have authorized the Crown for the first time to make regulations. There is no doubt that the Crown could at any moment have cancelled or altered the regulations, either by its inherent authority prior to the Act, or under the Act itself, and have proceeded to deal with the question as it thought fit. That was the state of things in 1809, under which several subsequent alterations were made, down to the period at which the Royal Commission, presided over by the right hon. Member for Morpeth (Sir George Grey), was authorized by the Crown. That Commission made a long investigation into the subject of purchase, and its Report was sent to the Crown, and communicated to the Executive Government, and was laid on the Table of this House as early as possible last Session. The Commission reported against purchase altogether, and greatly upon this ground—that, as a matter of fact, they found that over-regulation prices, which by the statute of 1809 had been made a misdemeanour, had grown up into an inveterate system. They found, further, that the system was such that the over-regulation prices were inextricably mixed up with the regulation prices, and that it was impossible to maintain purchase without permitting a breach of the law by over-regulation prices, and that therefore the only way of maintaining the law was to abolish purchase. The Executive Government were thus formally and officially made aware that there was a constant and habitual breach of the law on the part of the officers of the Army. It was brought to their attention by a Royal Commission, and it would have been impossible, having regard to the character and conduct of Public Business, for them to have allowed the matter to remain as it then was. The Government, therefore, brought in a Bill to deal with the whole question. No doubt as a matter of law they might have abolished purchase by Warrant before they consulted the House of Commons just as well as after they had consulted the House of Lords; but they brought in their Bill, not only to abolish purchase, but to compensate the persons who, under the indirect sanction of the Government and the Legislature, had broken the law by giving over-regulation prices—to give to those persons that compensation to which, if not entitled in point of law, they were entitled in point of honour and fair dealing. That they could not do, however, without consulting this House, which has to provide the money, and it would have been mischievous and unjust to abolish purchase without consulting the Legislature, which alone could deal with the question as a whole and provide compensation. The Bill passed after full and deliberate discussion, by great majorities in this House, and was sent up to the other House, which apparently was not sufficiently alive to the fact that, whether they liked it or not, there was an end to the system of purchase. The other House refused to consider the Bill for the abolition of purchase until, in the words of the Amendment which they carried— They had had laid before them, either by the Report of a Royal Commission, or by the Government, a complete and comprehensive scheme for the first appointment, promotion, and retirement of officers; for the amalgamation of the Regular and Auxiliary Land Forces; and for securing the other changes necessary to place the military system of the country on a sound and efficient basis. Now, that was a matter which the House of Lords had no right to ask for. If anything in the world is clear, it is that these matters of detail in the re-organization of the Army are matters which from the earliest times have been, and from the plain necessity of the case must always be, under the control of the Executive Government. If there be anything unconstitutional in this matter, it is on the part of the other House in insisting on that to which they have no constitutional right—to be consulted as to the practical details of the internal re-organization of the Land forces of the Crown. But because the Government has acted upon its own authority; because, purchase being condemned by the Report of the Royal Commission, by public opinion, and by a large majority of this House, and being defended by scarcely any one of the noble Lords who discussed the question in "another place," the Government have acted upon its own inherent authority, and abolished purchase, as it had a right to do, the hon. Member for Finsbury comes down and reads us an elaborate lecture on the dangers likely to result to the liberties of the people from the exercise of the Prerogative. Does any man in his senses believe that there is any danger of the House of Commons permitting that? In former days, when the Prerogative was a real thing, and meant the Executive Government in the hands of the Sovereign, there might be dangers to the liberty of the subject in its exercise. But what does it now mean? It simply means the action of the Executive, which is the action of the Minister who is retained in power by a majority of this House. When hon. Gentlemen talk of a dictatorship and of imperiousness they forget that if this Vote of Censure had been passed, there would have been an end of the dictatorship in five minutes. A single vote of a majority of this House of Commons at any moment will vindicate, if there is a necessity for vindicating, the liberties of this great Assembly, and to suppose that anyone could trench upon its liberties or confine its freedom is a matter which is really not worth consideration. The House of Lords had a legal right to take the course they did; but what were we to do? We exercised the power that we had, when we found ourselves in conflict with the House of Lords upon this question. What should we have done? Should we have dissolved? A dissolution would not have affected the constitution of the House of Lords. Were we to resign? It happens that the Liberal party is permanently in a minority in the House of Lords, and could never hold power at all if it were necessary to command a majority in that House. Could we have let the state of things remain as it was? Most certainly not, and if so we were compelled, for the sake of the administration of justice, if for nothing else, to take the step we actually did take. How could we continue to sanction the prosecution of poor people for petty offences against the law, and at the same time permit the rich to drive their coaches and four, as it is sometimes expressed, through an Act of Parliament. No one can say that the proper course would have been to legalize over-regulation prices; and, therefore, the only course that was open to us was to abolish purchase and to maintain the law, and afterwards to come to the House of Commons, trusting that the House would support us in maintaining the law, and in doing what was at our hands a simple act of duty.


Sir, it appears to me that the hon. and learned Gentleman (the Solicitor General) has not really addressed himself to the question before the House. That question was not whether the issuing of the Royal Warrant was a legal or constitutional Act. It may be both. All the arguments of the hon. and learned Gentleman would have been perfectly apposite if the policy of the Government had been that, feeling that they had the legal right to do so, they advised Her Majesty to issue a Warrant abolishing purchase, and then had come down to Parliament and asked the majority, of which the hon. and learned Gentleman appears so proud, to vote such compensation to the officers as was deemed just and right. That would have been an intelligible course, and one that probably would not have led to any long discussion. But nothing of this kind occurred. The hon. and learned Gentleman argues as if we were defending the House of Lords, who, as it appears to me, are quite competent to defend themselves, and have defended themselves. I still think it would have been advantageous to have had an authentic record of what took place in the House of Lords, as a means of throwing light upon what is at present an ambiguous Parliamentary transaction, and I have quoted a precedent for asking for such information when the Privileges of the House of Commons are in question. But Her Majesty's Government seem to prefer not to place before this House in an authentic manner the question which it has to discuss. What the House are, in my opinion, called upon to discuss at the present moment is, not the attack which the Government has made upon the Privileges of the other House of Parliament, but, as the hon. and learned Gentleman the Member for Finsbury (Mr. W. M. Torrens) stated, the attack which they have chosen to make upon and which has endangered the Privileges of the House of Commons. The Bill came down from the House of Lords with the consideration that the House of Commons had inserted withdrawn, and another consideration substituted, so that a material provision which the Lower House of the Legislature inserted in the Bill has been withdrawn from the consideration of Parliament. Is that a position in which the House of Commons ought to be placed? I narrow this question to the issue regarding the House of Commons. What is the result? We had taken great precautions, in assenting to the propositions of the Government, to abolish that which, in the opinion of the large majority of the House, was bad; but, as I understand, affairs have been so managed, that it would be perfectly possible for the Sovereign, in the exercise of Her Royal Prerogative, to revive purchase in the Army again at Her individual will. If that is a correct view of the case, I say that the House of Commons has been juggled out of its privileges, and that a state of affairs most serious has been brought about. And, in passing, I must be allowed to submit that it does not become the hon. and learned Gentleman to lay down as a principle that the only security for the liberties of the English nation is a majority of the House of Commons. That is not either a legal or a constitutional doctrine. We are bound to take steps to prevent, in future, Bills leaving this House having the most important provisions that we had inserted omitted, and in effect removed from the discretion of Parliament. We must remember the circumstances under which this Bill first came before the notice of Parliament. It was at the meeting of Parliament stated by Her Majesty herself in a Speech in the other House of Parliament, direct from the Throne, that the attention of Parliament would be called to the re-organization of the Army; and it is absurd to suppose that the opinion of the House of Lords was not to be taken on a question of such gravity—of course, with due regard to the Privileges of the House of Commons, in reference to the financial points involved. That appeal was made to us by the Sovereign personally. We gave all attention to that question: it occupied a considerable portion of the Session, and the Bill which resulted from that passage in the Royal Speech to which I am alluding has had a most injurious effect upon the progress of Public Business. But the House of Commons did not grudge the time necessary for its discussion, because everyone felt that the re-organization of the Army was a question of primary importance, and that it had obtained in its favour the entire feelings and convictions of the nation. We pass the Bill; it goes to the other House of Parliament, and then these extraordinary proceedings occur. An arrangement is made which is contrary to all usual custom, and now we have the Solicitor General telling us that the Lords have no right to come to the Resolution that they have arrived at—that practically they have no more right to express an opinion upon military than upon financial questions. We sent up the Bill, and what was its title? "A Bill for the better Organization of the Army." And yet this is one of those questions upon which the House of Lords had no right to utter an opinion. In that Bill there were provisions for the abolition of important privileges of Lords Lieutenant. The Bill, therefore, directly affected many of their Lordships, and how could you expect that they would not express an opinion upon it? The view of the hon. and learned Solicitor General is absurd. He commences by telling us that the exercise of the Royal Prerogative was in this instance both legal and constitutional—that the Prerogatives of the Crown cannot be questioned—and I am not here to impugn them—and he ends his speech by telling us that the Prerogative is not a real thing. I cannot agree with that. I respect the Royal Prerogative, because it is part of the law of England; but the Privileges of Parliament are so also, and both may be duly exercised without coming into collision. Further than this, I wish to have an explanation from the Prime Minister upon a Question which I asked previously. I want to know when that Warrant was issued by Her Majesty, whether she was recommended to issue it under a statutory power? Although the Solicitor General touched upon the Act of George III., I do not think that he maintained that under the regulations of that Act any Warrant could be issued by the Crown to confiscate the property of subjects. That Her Majesty could issue a Warrant by her sheer Prerogative, under the advice of her Minister, which would have altogether abolished purchase, and might virtually confiscate the property of her subjects, I am not here now to controvert. But I do maintain, if it be true, as the House understood from the First Minister of the Crown, that Her Majesty issued her Warrant by virtue of a statutory power—I will maintain, even against so great a lawyer as the Solicitor General, that it is impossible to abolish purchase in the Army under such circumstances. Sir, we have a right to an explanation on this point. We have had no explanation as yet. I want to know from Her Majesty's Government whether they advised the Crown, when Her Majesty issued that Warrant, that she was acting under a statutory power, or whether they advised the Crown that in issuing the Warrant she was doing so by virtue of her sheer Prerogative? Upon that point I think we have a right to an answer from the Government, and I think the House will be able to draw the proper inference whatever may be the reply. Are we to understand that the Ministers advised the Crown to issue the Warrant under a statutory power? If so, the Warrant would be ineffectual for the purpose. If, on the other hand, the Crown was advised that the Warrant was issued by virtue of its sheer Prerogative, then it cannot be denied that Her Majesty has been advised by her Ministers to do that very thing in a summary way herself which Her Majesty, in her Speech from the Throne, desired us to give our attention to in our legislative capacity. These are circumstances of a grave character, and I trust that some means will be found for a satisfactory explanation on the matter. I hope that that explanation will be given, and that some means will be found by which the Privileges of the House of Commons will be guarded and protected from any future assaults of this kind. I must impress upon the House the fact that they have passed a Bill of great importance the consideration for which has been expressed by one clause, which has been withdrawn, not by the constitutional action of the other House of Parliament, so that we might have another opportunity of considering the question, but has been withdrawn from the consideration of Parliament altogether. The principal provision was omitted in the Bill when it came down to us, and we find that it has been withdrawn by Royal Warrant, recommended by Her Majesty's Ministers; but up to this moment we are left in the dark whether the advice of the Ministers was given to Her Majesty that she was acting by statutory power, or by virtue of her sheer Prerogative.


said, there was one very simple question that he desired to put to the House; it was this—was it right that one House should be appealed to to repeal a statute under which purchase to the extent of the regulation price was authorized, and that when the Bill reached the other House, that House should be told that the exercise of the power of the Legislature was not necessary? This House was told that purchase existed under the statute of 1809 up to the extent of the recognized price, and under that statute vested interests had been created. He said nothing of the over-regulation price then; but vested interests in the value of commissions, up to the regulation price, had been created under the statute of 1809, and existed upon the faith of Parliament. Now, that was what was repeated to them over and over again in that House. They were told that there was a wide distinction between the over-regulation price, which was not sanctioned by the statute of 1809, and the regulation price which was sanctioned under that statute, and they had a division in that House upon that very point—upon the distinction between the vested interests created on the faith of Parliament by the statute of 1809, as contradistinguished from the over-regulation price, for which no such sanction existed; and then the hon. and learned Gentleman the Solicitor General came down to the House, and told them that that was all a mistake. But, while the Bill was in that House the Government told them that the interference of Parliament was necessary in order to compensate the interest which had been created on the faith of Parliament under the statute of 1809. When the Bill reached the House of Lords, the Government changed their tone. They now said that there was no statutory right in that security for the regulation price up to the limit assigned by the authority of the statute of 1809, and that the act of Prerogative was sufficient to abolish purchase altogether. Why, if the House of Lords had thought fit to throw out the Army Organization Bill on the second reading, the position of things would have been this—that Her Majesty, by Prerogative, would have abolished all the vested interests which had grown up on the faith of Parliament under the statute of 1809, and he (Mr. Newdegate) said that such abolition would have been an illegal act. But the House of Lords, whom the advocates of the Government treated so lightly, rather than place the Crown in that position, had sanctioned the whole Bill, including the compensation agreed upon by that House, and thus had saved the Government from the position of recommending the destruction of large masses of property by the exercise of the Prerogative without providing compensation. That was the position, and that was a position which he said would have been neither legal nor constitutional; but it had been rendered legal, and rendered constitutional by the act of the House of Lords, who had passed the Bill giving the compensation obtained from that House under a misunderstanding, that misunderstanding having rested on the representations of the Government that those regulation prices were secured by Act of Parliament, a position which they abandoned as soon as the Bill was opposed in the House of Lords. Now, that was an anomaly which it appeared to him that House was bound to notice; because the Government had only been saved from having destroyed large masses of property, secured on the faith of Parliament, though regulated by the Crown, but still secured under Act of Parliament, by Prerogative, and he said that that would have been reverting to some of the worst precedents of the abuse of the Prerogative. The House of Lords had saved the Government from that position; but the House of Commons stood in this position—that upon the showing and under the conduct of the Government themselves, they had been misled; they had been deceived into believing that the action of the Legislature was necessary to repeal the statute of 1809, and into granting a large amount of compensation in consequence of the action, which they were told was to be the action of the Legislature. That was their position, and he considered that the House was deeply indebted to the hon. and learned Member for Finsbury (Mr. W. M. Torrens) for having called attention to that fact, and that he was perfectly justified in saying that, although it might have been now condoned, and condoned by that House, it had been virtually condoned by the other House of Parliament, yet still the House of Commons, as the chief guardian of the property of Her Majesty's subjects, was bound to take some security that the precedent thus established, upon the showing of the Government themselves, for confiscating property which was secured upon the faith of an Act of Parliament, should not be repeated in any future case. At that late hour of the night he would not enter further into the subject than to say that he held it to be most monstrous that the hon. and learned Gentleman the Solicitor General should have declared that the exercise of the Prerogative was not really in the person of the Sovereign, but that it was a mere appanage of the Prime Minister, who, as the exponent of the will, not of the whole of the House, but of its majority, and who had just taken a step which he might thank the House of Lords for having condoned, by the course which they had adopted with respect to that subject, a step which, he trusted, would not be drawn into a precedent, as it might be, without some remonstrance on the part of that House.


said, he would beg to move that the debate be now adjourned.


said, he hoped the Government would agree to the Motion. ["No, no!"] Hon. Gentlemen said, "No, no!" He knew perpectly well it was then the 11th of August, and that grouse - shooting commenced to-morrow; but they were engaged on matters of far greater importance than grouse. No question within the memory of living man had been before the House of so much importance as this, because it affected the Prerogative of the Crown, the Privilege of the House of Commons, and the rights of the House of Lords. He was one of those who thought that the course adopted by the Government could be defended; but he would vote in favour of any Vote of Censure, if that course was to be defended on the doctrine laid down by his hon. and learned Friend the Solicitor General, who, to his (Mr. Vernon Harcourt's) surprise and regret, had founded his argument upon a Statute of Charles II., which was passed in the worst days of the Stuarts, and in the worst year of the most slavish Parliament that ever sat in this country. The hon. and learned Gentleman said that the statute was still in existence, and that it governed the relations of the Army to the Crown and Parliament; but that was not the case. On a reference to the volume of the Revised Statutes, he (Mr. Vernon Harcourt) found that it had happily been repealed long since; and he would remark that even if it were still in force it never governed the relations of the Army to the Crown and Parliament, for the best of all reasons—namely, that at the time it was passed there was no standing Army in England recognized by Parliament; because their ancestors had taken great pains during the reigns of Charles II. and James II. that there should be no standing Army at all. The Statute of Charles II. only had reference to the Militia "and to all the Forces by Sea and Land." ["Hear, hear!"] But at that time there was no land force recognized by Parliament except the Militia. Indeed, he was surprised that it should be necessary to teach the A B C of constitutional law at half-past 1 in the morning to a Government which was exercising the Prerogative of the Crown. The doctrine of the Statute of Charles, as applied to the standing Army, would not have stood 200 years ago, and the statement made to-night that Parliament had nothing to do with the Army, was one of the most extraordinary he had ever heard. Ever since there had been a standing Army in the country, the Army had existed by the authority of Parliament, and of Parliament alone. What was the Mutiny Act, which was passed every year? It recited that the Army was unlawful without the consent of Parliament. ["Hear, hear!"] He was happy to hear that this doctrine was not repudiated by all the Members of the Treasury bench. Then if that doctrine was correct, why was this House told that the House of Lords had nothing to say to the regulation of the Army? Why, they would find in the Statute Book statute after statute regulating the pay of the Army. The mere fact that there should be such a statement made as had been made to-night showed that the subject was one which required a great deal more consideration, as was well known. He desired to see purchase in the Army abolished; but there were things he did not wish to see abolished at the same time, and these were the first principles of the Constitution. To say that the Constitution of this country could be disposed of in a debate of two and a-half hours, at half-past 1 o'clock in the morning, was out of the question. Why, they would not take a Turnpike Bill into Consideration at that hour. He sincerely trusted that the proposal of the hon. Member for Brighton would be agreed to.


said, in reply to the statement of the Solicitor General that the exercise of the Prerogative of the Crown might be intrusted to the majority of that House, he believed that if, before the Warrant was issued, the First Minister had asked the opinion of the House whether purchase should be abolished by Warrant, many of the Gentlemen who had lately come into this House would have hesitated in sanctioning so extraordinary and eccentric a course.


Sir, we do not take any objection to the adjournment of the debate at this hour of the morning. The hour is too late to finish it. We should like to hear the defence of the Government promised by my hon. and learned Friend (Mr. Vernon Harcourt), but which he forgot to give us. But, Sir, we shall not be able to do it without further progress in Supply, which we must take up to-morrow, as the question of Prorogation depends upon that; the debate, therefore, should be resumed on Tuesday.

Debate adjourned till Tuesday next.

House adjourned at a quarter before Four o'clock.