Order read, for resuming Adjourned Debate on Question [10th August], "That this House doth agree with The Lords in the first Amendment made by their Lordships to the Army Regulation Bill;" and which Amendment was 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.
§ Question again proposed, "That this House doth agree with The Lords in the said Amendment."—(Mr. Secretary Cardwell.)
§ MR. FAWCETT
said, that nothing could more conclusively prove the state into which Public Business had fallen than the fact that this—perhaps the most important subject that had been presented for the consideration of the present House of Commons—came on for discussion at half-past 11 o'clock on the night of the 10th of August. There was no use in concealing from themselves unpleasant truths. Anyone who watched the state of public opinion out-of-doors must come to this conclusion, that the events of the Session had sorely tried the faith of the public in Parliamentary institutions. He was not going over the melancholy recital of the faults, the errors, and the blunders of the present Government. But not only had they an ineffective and inefficient Administration; the evil did not stop there, for they, unfortunately, had also a feeble Opposition. Not long ago the Leader of Her Majesty's Opposition in excited tones declared, with the approval, certainly, of more than one hon. Member not sitting on his own side of the House, that against the liberties of Parliament there had been a shameful and discreditable conspiracy. But he had not the courage of his opinions, or he would have given to independent Members an opportunity of expressing their views upon the acts that he complained of. For himself, he was bound to say that, from the first, he had objected to the resort to the Royal Pregrogative, and if ever he had entertained any doubts as to the want of wisdom displayed by Her Majesty's Government upon this question, they would have been removed, by the speech of the hon. and learned Gentleman the Solicitor General the other night. As he listened to that speech, it seemed to him that no such remarks had 1659 been made in the House of Commons for at least a century by a Minister of the Crown. No doubt, if Prerogative were appealed to, they might be living theoretically under a dictatorship; but if such views of the Prerogative were endorsed by the Ministry as that the House of Commons had nothing whatever to do with the Army, then the dictatorship ceased to be theoretical, and became a practical and serious fact. Now, what had occurred on this question? The other night, after the hon. Member for Finsbury (Mr. W. M. Torrens) had delivered a speech of rare ability, the Government did not condescend to give an answer until the Solicitor General had to be almost dragged up for the purpose of replying. Now he knew very well the defence of the Government. It was that there were three or four things which might have been done, each of which would have been more serious, and have involved greater evils than the course which they adopted. But nothing could be more deceptive, nothing more misleading than such an argument. The analysis of the Solicitor General was by no means exhaustive. He did not vouchsafe, for instance, to tell the House why, if purchase were to be abolished by the Act of the Crown alone, the House had not been asked at the beginning of the Session to agree to an Address asking Her Majesty to abolish the purchase system, and at the same time assuring Her Majesty that the amount of money necessary to give compensation to the officers would be voted by Parliament. That course, if adopted, would have been the act of the House, not of the individual Minister, and it would have removed many of the objections which were felt to this exercise of the Prerogative. He was told that the Prime Minister had acted on his individual responsibility, and that he had not come down to give the House an opportunity of expressing its opinion on the course about to be pursued, because, forsooth, it would waste two nights of the Ballot debate! Two nights of the Ballot debate! As if there had not been time enough wasted on that question. Was the Ballot debate for one moment to be compared in importance with the discussion of an act which, if drawn into a precedent, would strike a fatal blow at Parliamentary independence? The defence of the Go- 1660 vernment would be that the House of Commons had virtually approved of what they did, because by large and repeated majorities it had voted in favour of the abolition of purchase. But to that argument he begged to give the most emphatic and positive denial. Scores of men in that House—and he was one of them—had voted in favour of the abolition of purchase as an abstract Resolution, who would rather have seen purchase continued for the next 10 years than have seen a Liberal Minister resort to the exercise of the Royal Prerogative. The Prime Minister had no right whatever to assume that every hon. Member who voted with him for the abolition of purchase, and was anxious to see it abolished by the intervention of Parliament, would have been equally prepared and equally anxious to see it abolished by Royal authority. The set argument would, of course, be used that those who objected to this act of the Ministry should have come down and moved a Vote of Censure. But nothing could be more unfair than for the Government first to do a certain thing, and then say that the House approved it because no one came forward to move a Vote of Censure. Such an argument struck fatally at the independence of Parliament, for everyone knew that a question involving a Vote of Censure was never decided on its merits. A remarkable instance of this had been afforded during the present Session when the amended Budget was introduced. He ventured to say that not only were hon. Members on the opposite side unanimously opposed to the financial proposals of the Government, but an immense number of hon. Members on the Ministerial side were equally opposed to the doctrine that the national demands ought to be met by a tax levied upon one particular class. Scores had said that if the Budget were protested against it would involve a Ministerial crisis. It was the same with regard to the Royal Warrant. It was idle to say it was unanimously approved because no Vote of Censure had been moved. Such a Motion would have come in the middle of the Ballot Bill debate, and constituencies would have complained of those who voted for it on the ground that they were stopping the Ballot Bill. Thus the question could never have been considered on its merits, and no true decision could 1661 have been arrived at. The only way open to the Government was to propose an Address to the Crown; but that, unfortunately, had been neglected. He knew that this appeal to the Royal Prerogative was popular to a considerable extent out-of-doors, and among hon. Members who were supposed to hold Radical opinions; but, with all due deference to his hon. Friends who sat with him below the gangway, he ventured to assert that their conduct had been hasty and ill-advised. They were laying down the doctrine that a Minister having a majority at his back represented the majority of the country, and that such a Minister might exercise the Royal Prerogative with impunity. But the political cards might be shuffled. In the course of a few years a Tory Prime Minister might have a majority, and he would have the same right as the present Prime Minister to assume that he represented the majority of the country, and he might exercise the Royal Prerogative in a manner displeasing to the present majority, who, if consistent, would be unable to protest. Two cases might be cited to show this was not impossible. Three or four years ago each great party was bidding high for the support of the Ultramontane Irish votes. Each vied with the other in offering inducements; and he remembered how deeply both were implicated in the matter. [Mr. GLADSTONE: Hear!] At that time he happened to have a Motion on the Paper favouring the abolition of University Tests in Ireland, a matter which the right hon. Gentleman now declared involved a great and a just principle entirely approved by him. Believing it was not impossible that he would be counted out, he took care to have his Motion placed first on the Paper, and then a circumstance occurred which had not before taken place in that House. The "Whips" of the two parties stood on each side of the door, and, as hon. Members came down, they told them that the question was an inconvenient one for discussion. The consequence was, that although 160 Members were known to be in the lobbies, the House was counted out at 20 minutes past 4. Suppose at a time when these bids were being made for the Ultramontane vote the Government had introduced a Bill giving a charter to a Catholic college, and a minority in this House resisted 1662 such a proposal because the Session was expiring, and used the forms of the House for the purpose. Suppose under these circumstances the Government had withdrawn the Bill and done the work by Royal Prerogative, alleging as a reason that the vast majority of the House approved their scheme, and they could not wait to conciliate a minority. How could such a proceeding be objected to if this were approved? There was another case in which the same thing might occur. Suppose a Bill had been introduced by the Government to sell all the Crown Lands some four or five years ago, when open spaces were not so popular as now. Probably that measure would have been supported by a majority of the House, and the obstructing minority might have been defied by the exercise of the Royal Prerogative. Parliamentary forms were useful to prevent a minority being trampled on, and the independence of an Assembly being destroyed; but once the use of the Royal Prerogative was sanctioned the action of the minority would be rendered useless, and the independence of Parliament would be ignored. Some of his Radical friends might say that it was not simply a minority of the House of Commons which had been set at defiance on this occasion, but a majority of the House of Lords. In the colloquial phraseology of an hon. Friend, the Prime Minister had given the House of Lords a slap in the face, and he would receive for it the homage of a grateful country. None would suspect him of aristocratic proclivities; none objected more strongly and earnestly than he to the principle of an hereditary Legislature; but he protested with all the earnestness in his power at a great constitutional question being dealt with in this manner. It was neither fair nor just that this House should delight in the discomfiture of a co-ordinate branch of the Legislature. No one who observed the signs of the times could fail to acknowledge the importance of requiring questions to be decided in a broad and statesmanlike manner; and that being so, he objected to any question being disposed of in a convulsive and spasmodic manner. Could anything prove more conclusively the unsatisfactory relations of the two Houses than the occurrences of this Session? When Parliament was first summoned, it suited the Prime Minister to use the 1663 House of Lords; now that they opposed him he chose to use against them a weapon which was the opprobrium of the Stuarts, and had been protested against by the greatest champions of English liberty for centuries past. The University Tests Bill—a measure far more popular in the country than the Army Regulation Bill—was sent up to the House of Lords to be summarily rejected last Session. Early in the present Session, the Prime Minister, anxious to preserve a few remnants of ecclesiasticism, became deferential to the House of Lords, and forbad the alteration of the Bill, contrary to the wish of the majority of his supporters. A few months passed by; the House of Lords, without doing anything so drastic as that they had done with the University Tests Bill, merely expressed a wish felt by many in this House holding Liberal opinions, that before they abolished purchase the scheme of the Government should be before them. Immediately the Prime Minister ceased to be deferential, and met them with a coup d'état. A great question could not be settled in that way; it must be dealt with sooner or later, and the sooner the better for the future of their country and its Constitution. Some might ask him whether he was prepared constantly to see the wishes of the House of Commons frustrated by an irresponsible branch of the Legislature, and whether he was prepared to see the Liberal majority in one House constantly overridden by a Conservative majority in the other. He answered "No;" but desired to add an explanation of his meaning. No one could fail to notice the growth of a movement in favour of the abolition of the House of Lords. At present it might be likened to a stream which, if wisely used, might be diverted to beneficial purposes; but if neglected for a few years it would gather in force and become uncontrollable. What had occurred before would occur again; history would repeat itself, and prove that the greatest friends of extreme changes were not those who held extreme opinions, but those who unwisely resisted necessary and timely reforms. By describing the relations of the two Houses as unsatisfactory, he did not refer simply to the rejection by one branch of the Legislature of measures approved by the other; he referred more particularly to the 1664 position of the Peers themselves. What did the House of Commons require of high-minded men in the other House? He would instance a noble Lord formerly sitting in this House, with whom he seldom agreed, but whom he always admired for his remarkable powers and his fearless independence. Possibly against his will, that noble Lord had been transferred to the other House, and now if he gave conscientious expression to his opinions, and voted according to his convictions, he was told that he was forcing on a revolutionary crisis; and this must be his fate, it seemed, unless he ceased to be politically active. If, as our political changes tended to universal suffrage, a false democracy were to be created not representing the whole people, but bare majorities, then he would be the last to desire the abolition of the House of Lords, and would do his utmost to strengthen it. The manner of doing this would not be difficult. However great their ability and virtues, their intellectual gifts or services to the country, our countrymen were virtually excluded from a political career unless they were rich enough to accept a Peerage, to squander thousands in a contested election, or, what was worse and more demoralizing, would accept the Shibboleth of a political party. Consequently, many of the best men in the country were excluded from a political life despite the acknowledged canon that as many as possible should be encouraged to take an interest in public affairs. No more conclusive indication of the unsatisfactory state of affairs and of the gradual passing away of patriotism and of all high public virtues could be required when the best men of the country were excluded from politics. He therefore desired to see a second Chamber constituted by the best men in the country being gathered together independently of party favour; their claim to the position being distinguished services rendered to the State. It was not difficult to say how they should be selected. Any man who had discharged a public position with satisfaction to the State was entitled to claim a senatorial position, independently of the favour of any political party. Thus men might be admitted to this second Chamber who had been colonial governors, who had occupied high positions in India, who had been Judges for so many years, who had distinguished 1665 themselves in the Army and the Navy, or attained high positions in science, philosophy, or art. With such a Chamber the people would not be angry if it tempered the acts of the Lower House. The people were angry with the present Upper Chamber because they objected to the principle of hereditary legislation; because they objected to the principle that some men were born to govern others. A Chamber, such as he had described, would command the respect of the people, because its right to existence would be founded on personal merit. It was personal merit that a second Chamber should represent just as the popular Chamber represented popular feeling; and all who dealt with these questions must remember that the wider the suffrage became, and the more democratic the representative Chamber became, the more it would represent popular feeling, and the more it required to be linked with a second Chamber commanding the respect of the people—a second Chamber constituted on some such model as the Roman Senate, of which it had been said that no national assembly probably that ever existed was so prudent and so sagacious. He trusted in expressing these opinions he had not concealed his thoughts. He was not in favour of abolishing the House of Lords as long as the House of Commons was constituted as at present. As long as the predominant majority in each constituency only was represented in the House of Commons, then, Radical as he was, he hoped to see the hands of the second Chamber greatly widened and greatly strengthened. The alternative was fundamentally to change the principle of representation in this House so as to form a true democracy representing all persons. In candour, he was bound to admit that he sympathized with the action of the Lords on the subject of the Army Bill. He had never given a single vote in its favour, for although no one could be more opposed to purchase than himself, he would rather see it continued ten years longer than assist the introduction into the government of the Army of that baneful and demoralizing influence—political patronage. He would repeat before his constituents—even if his election depended on it—that he would infinitely prefer purchase to the blighting, benumbing influence of political patronage introduced into the Army. 1666 The Government might pass their Ballot Bill, in order to do away with bribery and intimidation; but all their efforts would be in vain, if, at the same time, the Government extended the area and scope of political patronage. And the reason why he had never given a single vote in favour of the Army Bill was simply that he could never get from the Treasury bench a clear and distinct statement as to what they would do if purchase were abolished. If they had only distinctly told him that political patronage would have nothing to do promotion in the Army, then he should have cordially supported the Bill. That being his feeling, it was natural for him to a certain extent to sympathize with what had been done in "another place" when they tried to obtain more information and to extract from the Ministry whether or not political patronage would in future have anything to do with Army promotion. When the announcement of the Royal Warrant was first made in the House of Commons an instinctive feeling told him that what had been done in the matter was neither wise nor just; but, finding how much the act was approved by politicians of far greater experience than himself, he had felt that a premature condemnation would have been unbecoming and ill-advised. He had certainly thought that the Leaders of the Opposition would have afforded to independent Members an early opportunity of expressing their opinions on that great constitutional question. In that, however, he had been disappointed, and, late as it was, he availed himself of the present occasion to say what he had done. Political life had taught him that there were certain cardinal moral maxims alike applicable to the humblest affairs of private life and to the highest affairs of the State; and if those who so loudly cheered that appeal to Royal Prerogative had only remembered that it was well to do as they would be done by, the supporters of the Prime Minister would have disapproved what they so warmly applauded. He ventured to assert that if things had been changed in that House, if the great parties had crossed over, and the right hon. Member for Buckinghamshire (Mr. Disraeli) had appealed to Royal Prerogative, they would have heard—from a quarter which he need not more particularize—eloquent and passionate denunciations about that 1667 high-handed act of a Tory Minister; and that denunciation would certainly have been cheered by some who had approved the Royal Warrant. Those being his opinions, he hoped the House would not deem the protest he ventured to make either inappropriate or ill-timed; for he thought that those who held advanced Liberal opinions should, above all things, be careful never to sacrifice to party either justice or consistency.
THE ATTORNEY GENERAL
said, he thought the House would hardly thank him if he were to follow the hon. Gentleman over the very wide field he had traversed; but he would endeavour to deal with the small part of his speech which had reference to the subject before the House. He would indulge in no vague declamation about Prerogative, which had been spoken of as a thing altogether unknown. So long, however, as this country remained a Monarchy, a great many important acts must be performed by the Prerogative. Signing the Treaty of Washington was an act of Prerogative, as important, probably, as any that could be advised. Every appointment and promotion in the Army was an act of Prerogative. So was the appointment and dismissal of Ministers; and the House of Lords, which had excited the new-born zeal of the hon. Member, was created and kept up by the exercise of Prerogative. He was the last man to take what was called a high Prerogative line. They would all remember the celebrated saying that the power of the Crown had increased, was increasing, and ought to be diminished; and, in earlier days, they might have been seriously apprehensive about the Royal Prerogative. But for a long time past, the power of that House had been growing and growing, while that of the Crown had been waning and waning; and to suppose the power of that House, or the rights and privileges of the people were likely to be endangered by the Royal Prerogative was a complete bugbear. He would not interpose in the controversy about the Act of Charles II. between the hon. and learned Member for Oxford (Mr. V. Harcourt) and his hon. and learned Friend the Solicitor General—two champions each so well able to take care of himself; but he would confine himself to more modern times, and begin with the Act of 1809. Undoubtedly, before that statute the Crown had issued 1668 regulations with respect to purchase in the Army. Those regulations had been from time to time revised and corrected, and there was then no question that they had been made by virtue of a Prerogative—and he believed an undisputed Prerogative—of the Crown. Let them consider what the effect of that statute was. It was directed, in general but most comprehensive and stringent terms, against all selling, bargaining or trafficking with offices of any description in the public service, and it declared all such practices to be a misdemeanour. If the statute had stopped there, he thought there could have been no doubt that the power of the Crown to make regulations as to purchase in the Army would have been abolished; for although the Crown was not bound unless by express words or by necessary implication, yet when an Act of Parliament declared certain things unlawful and a misdemeanour the Crown could not have permitted them without claiming that dispensing power against which our ancestors so strongly protested. But, after enacting generally that all traffic in public offices should be a misdemeanour, the statute expressly reserved to the Crown the power of exempting from its operation, by rules made, or to be made, by the Crown, a particular class of persons. So that, while the power of making those regulations was a matter of Prerogative before the statute, it could be better described after the statute as a dispensing power conferred by statute on the Crown. The power was exercised in 1823, in 1854, and also in 1861, when alterations were made in the rules. He now came to the Royal Warrant, which was simply a declaration on the part of the Queen of her determination no longer to exercise that dispensing power, no longer to interfere with the operation of the general law in regard to a certain class of her subjects. The Queen in effect merely said—"I will no longer exercise a power which once belonged to me by Prerogative; and, whether it belongs to me now by statute or by Prerogative, I will cease to exercise it—I will no longer place a shield between the law and one class of my subjects, but what is unlawful for one class hereafter shall be unlawful for all." So far, therefore, from the Royal Warrant being the revival of an obsolete or a dangerous Prerogative, it put an end to the continu- 1669 ous exercise of a dispensing power in favour of one particular class. This was what the hon. Member for Brighton (Mr. Fawcett) characterized as a dangerous exercise of the Prerogative of the Crown, and which others had declared to be the exercise of an obsolete Prerogative. But to take such a ground as that showed a hopeless confusion of ideas and an incapacity to understand the question. That being the true nature of the Warrant, its issue was legal, and that it was constitutional there could be no doubt. He understood the right hon. Member for Buckinghamshire (Mr. Disraeli), on a recent occasion, to have admitted that it was both legal and constitutional; and, if so, that right hon. Gentleman was, as a lawyer would say, out of court. Well, the question of purchase, of an indemnity to those who had violated the law, and of a provision for the payment of over-regulation prices, which, by the concession of all parties, it was necessary to submit to Parliament, having been so submitted to Parliament, it was said that before Parliament had finally decided on the matter it had been taken out of their hands. No doubt it would have been more satisfactory if they could have obtained the assent of both Houses to the abolition of purchase; and he could not help thinking that a Minister would have acted with no great prudence if he had not, at all events, made the attempt to obtain that assent. But as in private so in public affairs it often happened that there were two or several courses open to them, which, after all, were but a choice of evils. They could not take any course that was altogether free from objections, and what they had to do was to take the one open to fewest objections. The latter was the course adopted by the Government. What was the situation of affairs when the Royal Warrant was issued? The habitual violation of the law in regard to over-regulation prices was a scandal, at which, especially after the Report of the Royal Commission, it was impossible the Government could continue to wink. That House had accepted the measure for abolishing purchase, and the Bill went up to the House of Lords. Did the House of Lords differ from that House on the system of purchase, and affirm that it ought to be continued? He maintained that it did nothing of the kind. He did not think 1670 he was going too far in saying that the House of Lords had tacitly condemned that system; but they adopted the extraordinary—he might almost say the unprecedented and unconstitutional—course of refusing, upon a transparent pretext, even to entertain and consider a Bill which this House, after months of deliberation, had sent up to them. The matter, therefore, by the extraordinary vote of the House of Lords, refusing even to entertain the Bill, was placed in this position—that the House of Lords alone By its vote practically dispensed with a statute directed against a practice which was opposed to the spirit of the law and was condemned by public opinion. How long was that state of things to remain? Could it have been allowed to go on throughout the Recess and until a new Army Bill was introduced in another Session, and, after months of debate in that House, was sent up to the House of Lords, possibly only to be again rejected there? Such a situation would have been absolutely intolerable, and more especially as the system of purchase was a complete barrier against all re-organization and improvement of the Army. If they had permitted that state of things to continue, they would probably have had the learned Professor (Mr. Fawcett) holding them responsible for it, as they had the power to prevent it, and telling them they had nothing to do but to advise the Crown not to exercise any new Prerogative, or to make any new regulations, but simply to maintain the general course of law.
THE ATTORNEY GENERAL
said, he thought it probable the hon. Member would have said anything that was most disagreeable.
§ MR. FAWCETT
appealed to the Speaker, whether an officer of the Government had a right to imply that his conduct in that House was dictated, not by a regard for what was true and just, but by a wish to say what was most disagreeable?
THE ATTORNEY GENERAL
insisted that the Government would, in the case he had supposed, have been open to just censure. He could not help thinking that the nature of this act of the Government had been entirely misunderstood. It was far from being an exercise of Prerogative. It was legal and constitutional; it was the best course that, under the circumstances, the Government could possibly have adopted. In conclusion, he thought the learned Professor was right in saying it was generally popular, for he believed it was approved by the House and the country.
§ MR. VERNON HARCOURT
said, he regretted the tone in which the hon. and learned Gentleman the Attorney General had answered the hon. Member for Brighton (Mr. Fawcett), to whom he never listened without great instruction, and from whom he never differed without regret or without diffidence. He knew that the hon. Member for Brighton was open to the criticism which Mr. Pox passed upon Mr. Burke, when he said that Mr. Burke was right, but that he was right too soon. That was the grand fault imputed to his hon. Friend, who had acted so often as the great backwoodsman of the Liberal party, clearing away the jungle and the forest of abuses; and when the hard work was accomplished, the official squatters were very glad to settle on the land he had reclaimed. He had seen his hon. Friend had very often been denounced for the course he had taken; and he had almost invariably observed that the policy adopted months afterwards by the Government had been that recommended by the hon. Member for Brighton. Passing from that, he had heard with some satisfaction the speech of the Attorney General. There was a rule—he did not believe it was a Standing Order of this House, but which he believed prevailed at the Newmarket racecourse—by which the owner of two horses had to declare by which horse he would win. The right hon. Member for Buckinghamshire (Mr. Disraeli) asked the other night whether the Government intended to rest upon Prerogative or upon statute. After that challenge had been fairly made, and after the speeches delivered by the Solicitor General and the Attorney General, they were entitled, before that debate closed, to call upon the owner of those two distinguished steeds to name the one by 1672 which he intended to win—whether by the Solicitor General on Prerogative, or the Attorney General on statute. That was a very grave question, and he did not think it could be allowed to stand on the ground where it had been left either by the Solicitor or the Attorney General, hitherto the sole representatives of the Government on that matter. It was a remarkable fact that in that great historical debate the House had not yet heard the opinion of one single responsible Cabinet Minister who had advised the Sovereign to take the course she had pursued. They had been told that this had been an exercise of the Prerogative, and the hon. Member for Brighton had found fault with hon. Members below the gangway who approved that exercise of Prerogative. Now, he must exempt himself from the criticism and censure of his hon. Friend, because he disapproved the introduction into this question of Prerogative in every form; and if he believed that that act partook in any sense of the character of Prerogative, there was no censure on the Government in which he would not willingly join. They had heard that Session from the Treasury bench doctrines in regard to the rights of the Crown in respect of Crown lands, from which he, for one, wholly dissented, and if it had not been for the unprecedented circumstances of the Session, he should certainly have challenged the opinion of the House of Commons upon them. Bearing those facts in mind, they could not accept the very moderate and Parliamentary speech of the Attorney General as any sufficient withdrawal of the assertions of the Solicitor General. The Solicitor General had said distinctly that the abolition of purchase had been done by an act of the Prerogative of the Crown; that the Crown was the sole governor and regulator of the Army; and that Parliament had nothing to do with the question. Such a statement as that, made in the presence of the Government, not disapproved nor withdrawn by them, was one which the House of Commons could not fail to challenge unless they had sadly degenerated from their ancestors. Such a proposition as that had not for more than 200 years been the law or Constitution of this country. Such an assertion was treason against the fixed Government of this country and contrary to all the legal 1673 traditions under which we now lived. It reminded him of a circumstance well known in our political history, when Mr. Fox got up and claimed the Regency as the right of the Prince of Wales by his hereditary title as son of the King. Mr. Pitt, on hearing Mr. Fox make that statement, slapped his thigh and said he would un-Whig the right hon. Gentleman for life, maintaining that the Prince of Wales had no more right to the Regency than any other subject of the Realm. When he heard it said that the Crown was the sole governor and sole regulator of the Army, he was disposed to meet the assertion with the statement that the Crown had no more to do of its own authority with the Army than any subject of the Realm. In calling such matters into debate, they were standing in the very shrine of the Constitution—inter penetralia Vestœ—discussing the constitutional relations of the Crown to the Army. There was a time when the Crown had a Prerogative, and when the statement of the Solicitor General was true that the Crown was the supreme governor and regulator of the Army. That was in the days of the first Stuarts, in the days of James I. and of Charles I., in the days of military tenures; and it was in virtue of those military tenures that the supremacy of the Crown over the Army existed. In that celebrated debate—the very cradle of their liberties—on the question of ship money, those great lawyers St. John and Hatton were obliged to admit that by the law of this country the King had a sovereignty over the Army. That state of things was found to be intolerable, and Charles I. lost his head in consequence of his attempts to act upon that Prerogative which the Solicitor General asserted with approval from the Treasury bench. It was to that very doctrine stated from the Treasury bench that these well-known lines might be applied—What murdered Wentworth and what exiled Hyde,By Kings protected and to Kings allied?Why, Strafford died on the block, and Clarendon was disgraced for pretending, the one and the other, that the Crown was the supreme governor and regulator of the Army. After the Royal Army of Charles I. they came to the House of Commons' Army in the time of the Commonwealth, which, was 1674 not much more satisfactory than the former; and next they came to the Dictator's Army in the time of Cromwell, which lent its effectual support to "a Minister with a powerful majority." They were told by the Solicitor General that there might be great danger in the days of a resolute King from the Royal Prerogative. He was not prepared to say there might not be danger from a resolute and powerful Minister with an Army at his disposal. The Attorney General said that the exercise of the Prerogative of the Crown was nothing more than the act of the Minister with a majority at his back. Well, that did not open up a pleasant view before them if the doctrine of the Solicitor General was right that the Crown was the sole and supreme governor of the Army, and Parliament had nothing to do with it. He did not know whether that "bauble" would be removed from the Table, or whether, after the speech of the Attorney General, a corporal's guard would take the hon. Member for Brighton into custody by order of the hon. Member for Shaftesbury (Mr. Glyn). He now came to the period of the Restoration. The Parliament of that day, drunk with the reaction of Monarchical principles, passed Preambles such as those cited by the Solicitor General; but it had too much experience of Royal Armies, and was too wise practically to surrender the liberties of the subject. They were determined that there should be nothing but the Militia—a national force—in this country, that there should be no standing Army, and there was none, although Charles II. and James II. tried surreptitiously and under the name of a body-guard to get together a standing Army. Charles II., by the aid of French gold, collected some 5,000 men, and James II., in a similar way, in spite of Parliament, had got about 30,000 soldiers together, of whom he made himself sole governor and regulator when he was dismissed from the Throne. It was upon those principles of the Restoration that the first spokesman of the Government defended the policy of the Royal Warrant. Then came the Revolution of 1688, and the settlement of the Crown on the principles of the Bill of Rights. One of those fundamental principles was that a standing Army in time of peace, without the consent of Parliament, was unlawful. From that time to this that 1675 principle had been, year by year, reasserted by Parliament. From that date he utterly denied the existence of Prerogative at all in connection with the Army of England. The Bill of Rights founded the Crown of this country on a Parliamentary title; the Crown stood no longer on the doctrine of hereditary rights; it rested on a Parliamentary compact. Why, the Bill of Rights declared that the very existence of an Army in this country—except by consent of Parliament—was contrary to the law. Ever since then the Army of England had been the creature of Parliament, and whatever authority or Prerogative the Crown had possessed since that period was derived from the Parliamentary compact embodied in the Bill of Rights. For what was Clarendon disgraced and Danby impeached but for pretending that the regulation and government of the Army rested in the Crown independently of Parliament? That was a matter of great importance. They were about, he hoped, to commence to have an Army. They had no Army now that could go more than ten miles. They must now come to some understanding as to what sort of Army they were to have—whether it was to be an Army founded on the principles of the English. Revolution, or whether, with the Solicitor General, they were to revert to the days of the Stuarts. He asked the House to consider what had been the practical conduct of affairs since the Revolution—what was done in the Declaration of the Bill of Rights. The Mutiny Act was passed, and for nearly 200 years the Army had depended on an Act annually passed by Parliament. It was the habit of people who did not consider these things to say that the House of Commons had control over the Army by virtue of the Votes in Supply. But that was not all. The House of Lords must be a party to the Mutiny Act; and if they refused to be a party to it the Army would be disbanded. They were told the Army depended on the Crown, not on either House of Parliament. On what did its discipline depend, but on the Mutiny Act? Its numbers were defined by the Mutiny Act, and surely its numbers had something to do with its existence. Of course, the pay of the Army depended on the Vote of the House of Commons. He thought this Bill for the abolition of purchase 1676 was intended, and, good, easy man, he had supported it under the notion that it was to give them a national Army. So it was when it left that House; but now, when the Bill was returned, it was described as a Royal Army still. What became of the £8,000,000 with which they were to redeem the Army as the possession of the nation? He thought there had been too much already of Royal influence about the Army, and that the abolition of purchase would do something to get rid of it. But he was now told it was not an affair or business of Parliament at all. He begged leave to make an assertion exactly the opposite of that which had been made by the Solicitor General. His hon. and learned Friend had stated that the Crown had the sole government and regulation of the Army, and that neither House of Parliament had anything to do with it. The question was not whether the Act of Charles II. had been formally repealed, though upon that point he imagined there could no longer be any doubt. It was repealed 200 years ago by the Bill of Rights. It was repealed in principle long before it was repealed in form. His assertion was this—that a Parliamentary Sovereign presided, by the will of Parliament, over a Parliamentary Army governed by Parliamentary regulations. That was not at all inconsistent with the fact which had led people in common parlance to talk of the Army as the Royal Army, because it was quite plain that the Legislature, being masters of the subject, could reserve certain questions to themselves, and remit such others to the Crown or Executive Government as they could most conveniently deal with. He should like, if not wearying the House, to call their attention to the words of a much greater man than, he was afraid, was to be found in these days—he meant Sir James Mackintosh, who had to discuss this question of the relations between the Crown and Army when the French indemnity was handed over in 1815 to the King to be distributed to the Army. Sir James Mackintosh absolutely objected to the Crown having anything to do with the distribution of that indemnity. These were his words—This Constitution has provided various means of check on that most unmanageable instrument of power—a standing Army. Whether the union 1677 of all of them be an adequate security may be doubted, but no man ever thought that all of them were more than enough. One of these controls is the annual Mutiny Bill, which renders the means of maintaining discipline annually dependent on the pleasure of Parliament. This check is held by the whole Legislature. Another and the only control exclusively vested in the House of Commons is the annual grant of money for the support of the Army.He went on to say—Why should not Parliament have been left the grace of voting this or any other sum to the Army? Why should they be weaned from that dependence on Parliament which in some measure counterbalances the natural attachment of Armies to a Monarch? The principle of our Constitutional Army is that commands, preferment, and honour come to it from the Crown; that for all pecuniary remuneration it is made to depend on Parliament. The more we examine these transactions the less traces We discover of that deep conviction which distinguishes wise statesmen that in the management of an Army no danger is to be treated as inconsiderable, and no jealousy as excessive. The chance may be small, the object of fear may be distant, but the magnitude of the evil makes up for the smallness of the risk. I do not say that great impressions are or can be made by any single act on the sentiments of the Army and people of this kingdom—these are not the evils against which we have to guard in such a country as this. It is against the first approaches of danger, against the silent progress of evil, against the temper which views such advances with supine security, that it is our constant duty to struggle.It will probably he said that Ministers are responsible for the exercise of this like every other power of the Crown. Whenever a power is proved to be legal, responsibility is doubtless our safeguard against its dangers. Whenever the creation of a new power is shown to be absolutely necessary, then, also, we must content ourselves with such securities as the responsibility of Ministers may afford. But we must not speak of responsibility till either the legality or the necessity of the power is made out. Responsibility is no name either for recognizing or granting political power, it is only a security of a certain value against the abuse of an authority which legal evidence proves to exist, or urgent danger renders it necessary to create. The presumption must be that whatever is sought to be withdrawn from the disposal of Parliament is meant to be applied to purposes which Parliament would not approve.He did not wish to be misunderstood—he said the Crown was the Parliamentary agent for the administration of the Army. Since the Revolution it had been nothing else. Some things Parliament kept in its own hands, and some things it had left to the Crown. If they consulted the alphabetical index to the Statute Book, they would find that pay, pensions, half-pay, retirement, Parliament had kept to itself. And when he said Parliament, he did not use the term 1678 in the loose sense in which it was sometimes employed when people spoke of the House of Commons as Parliament. He was not speaking of an Army at the disposal of the majority of the House of Commons, or the Minister commanding that majority. Parliament, in the constitutional sense of the word, meant the three great members of Parliament—the Crown, the Lords, and the Commons. He would describe what he meant by Parliament in the words of one of those giants of former days, among whom, unhappily, they felt themselves to be but pigmy politicians. His description of Parliament was this—As long as our Sovereign Lord the King and his faithful subjects the Lords and Commons of the Realm—the triple cord which no man can break, the solemn, sworn, constitutional frank pledge of the nation; the firm guarantees of each other's being and each other's rights; the joint and several securities each in its place and order for every kind and every quality of properly and dignity—so long as these endure we lire all sale together—the high from the blights and spoliations of rapacity, the low from the iron hand of oppression and the insolent spurn of contempt. Amen, so be it, and so it will be—'Dum domus Æneæ Capitoli immobile saxum,Accolet imperiumque pater Romanus habebit.'These were the words of Mr. Burke in days before statesmanship had become a lost art. It was necessary to re-assert those principles after the speech they had heard from the Solicitor General. It was the more necessary to re-assert them because, unfortunately, as his hon. Friend the Member for Brighton had observed, they had no longer an Opposition which performed its constitutional functions. When Tory principles were enunciated by the Treasury bench could they expect that the Opposition should challenge them? How unlike the action of that great Whig Opposition that had wandered for 40 years in the wilderness of hopeless opposition; but which, by its spirit and its principles, laid the foundations of that great Liberal party which for 40 years had succeeded them. He thought the right hon. Member for Buckinghamshire had on this subject caught some of the Pythagorean infection, and practised a sort of silence even under cover of his speech. Probably the right hon. Gentleman did not much object to those principles which had been asserted so boldly by the Solicitor General. His silence on a constitutional question of this kind was rather ominous. With the Philistines 1679 of Opposition, no doubt, he thought it rather sport to see the Samson of the Whig party toying with the Dalilah of Prerogative. If this question was to be defended on the ground of Prerogative, he could have nothing to do with it at all. He had defended it because he believed it a purely statutory execution of a power conferred upon the Executive Government by Act of Parliament. He said it could be defended on the statute, and on the statute alone. The Warrant began by reciting the statute; it professed to be founded on statute, and to be in execution of the statute. The right hon. Gentleman the Secretary of State for War and the Government, on the first occasion when the subject was discussed, declared that they would stand by the statute; but then there had been a singular variation in the course which had been taken on the subject, which had led to much misunderstanding. In the House of Lords Lord Granville began by taking the statutory ground. Then, later on, the Duke of Argyll appeared to rely on the Prerogative. Lord Cairns congratulated the Government on having abandoned statute, and reverted to Prerogative. In this case the opposite course had been taken in that House, for the Government began with Prerogative through the Solicitor General, and had gone back to statute. He (Mr. V. Harcourt) hoped the right hon. Gentleman at the head of ths Government would tell them before the debate closed that Prerogative had nothing to do with the question. Unless he did so there would be great difficulty about these Amendments, for while the Warrant professed to be founded on the statute, as the Bill came down to them all allusion to the statute was struck out. The Lords had converted it into a Prerogative Act, and the Government, by the omission of all reference to the statute on which they had acted, practically admitted that it was not a statutory, but a Prerogative Act. Believing, as he did, that the Warrant could be defended on the statute, it was not for him to find fault with the Government for having even unconsciously done a constitutional act. If a man accused himself of murder and no murder was committed they could not hang a man because he accused himself of murder. Therefore, although the Solicitor General took a high Prerogative line, if he could defend the act by the 1680 doctrines of the Constitution he was satisfied. The Act professed to be founded on the Act of George III., and, according to the sensible and convincing argument of the Attorney General, it fulfilled the conditions of the statute. He (Mr. V. Harcourt) entirely agreed with that argument, because that was the view which he himself from the first had taken of the operation of the statute. The statute declared the sale of all offices to be illegal. It would have made the sale of commissions illegal also if nothing further had been contained in the statute; but it exempted from the statute a particular class of offices, and left the Crown the discretion whether these offices ought or ought not to be kept out of its operation. What had the Crown done? It had declined to use the power of exempting these offices from the penalties of the statute, and that was all. It was a simple abandonment of the powers left to the Crown by Parliament, and had nothing to do with the Prerogative at all, and that was the ground on which he defended the course which had been taken. The Royal Warrant might allow purchase to remain or not; but no Royal Warrant could have made purchase legal. The statute made that illegal which no Royal Prerogative could have made illegal. The statute, and the statute alone, could test the illegality, and it was the statute which gave the Crown power to make purchase illegal, which it did not possess before the passing of the statute. Now, would purchase become illegal next November in consequence of the Warrant or of the statute? Most assuredly it would be by virtue of the statute, and why the odious and detestable word "Prerogative" had been introduced into the discussion he could not understand. If this was a statutory power why did not the Government exercise it at first. This was only part of that unintelligible process of mismanagement which had distinguished the present Session. The obvious and simple course for the Government to have taken at the commencement of the Session was to have come down to Parliament, and say—"We have statutory powers to abolish purchase. We don't mean to use them without consulting the House of Commons." The proper course would have been to move an Address to the Crown 1681 to exercise the Parliamentary and statutory power which the Crown possessed. If, after discussion, the House of Commons had assented to that proposal, the thing might have been done, and a Bill might have been introduced to authorize compensation, which, as a mere compensation Bill, would hardly have been opposed, and so they might have avoided a wasted Session. Why this was not done he could not understand. But he could not say that the act itself was either illegal or unconstitutional. The House of Lords had, no doubt, placed the Government and the House of Commons in a situation from which it was very difficult to escape. No word should escape his lips which was not profoundly respectful to the other and co-ordinate branch of the Legislature. It was very unfortunate that the position of the two Houses should come into discussion; but he ventured to say that if the position of the House of Lords was to be discussed, it was far better that it should be discussed in the House of Commons than that it should be discussed exclusively "elsewhere." No doubt, we owed much political gratitude to the House of Lords. In the darker days of the earlier history of this country the House of Lords stood up as the bulwark of the liberties of England, both against the overshadowing influence of the Crown and against a corrupt House of Commons. The situation of things was different now. Sir Robert Peel stated the great problem when he said that he had to reconcile a proud aristocracy with a reformed House of Commons. The Duke of Wellington expressed the same sentiment in different words when he asked how the Queen's Government was to be carried on. The great constitutional difficulty now was to reconcile a state of things in which they had a majority in the House of Commons opposed to a majority in the House of Lords. Unhappily, the conduct of the House of Lords had fallen into very different hands from those of Sir Robert Peel or the Duke of Wellington. There presided over the majority of the other House a man of great abilities, of great courage, but it seemed to him of very moderate prudence. On one celebrated occasion, on the second reading of the Irish Church Bill, in a lucid interval of statesmanlike prudence, he remembered that the Mar- 1682 quess of Salisbury recommended the House of Lords to accept the second reading of that Bill.
§ MR. STAPLETON
said, the hon. and learned Gentleman was infringing a Rule of the House in quoting a speech made by the Marquess of Salisbury in the other House of Parliament.
§ MR. VERNON HARCOURT
After the commentaries which were made in the other House of Parliament upon language used in the House of Commons; after the phrases that had been employed by that noble Lord, not only about Members of the House of Commons, but still more about the constituencies of this country; he was astonished that the hon. Member should be so mealy-mouthed.
§ MR. SPEAKER
said, the hon. and learned Member had already referred to an expression which had been made use of in the House of Lords, and was arguing that it ought to be reciprocated in that House. That House had Rules for itself, and they must be upheld. It was no justification of a violation of those Rules that something had been said in the House of Lords. The House must abide by its own Rules; and for a Member to pursue an argument used in the other House during the present Session was contrary to the Rules of the House.
§ MR. VERNON HARCOURT
said, he bowed to the decision of the right hon. Gentleman. He believed he had not quoted anything that had been said in the other House in the present Session. He would pursue that subject no further. It was vain to suppose that the language he had described as having been used "elsewhere" would not be discussed somewhere, if it could not be discussed in the House of Commons. It would be discussed on the platform, and to the platform he must remit it for discussion. If any course was pursued in the other House of Parliament which had a tendency to precipitate a conflict between the two Houses, both sides of that House would equally have to deplore that event. There might be such a conflict. It was well known that a Vote of Censure had been passed on the Government by the House of Lords. Perhaps he might be allowed to refer to that. It seemed to him a most unfortunate circumstance that the House of Lords had called the attention of the 1683 country to the fact that the fate of the Executive Government did not depend upon the House of Lords but upon the House of Commons alone. At the end of last century the House of Commons was engaged in a great struggle with the Crown. The end of that struggle they all knew. It ended in the final victory of Parliament. But that struggle had concluded without permanent injury to the authority of the Crown, for he believed that at no time did the Crown possess more influence than at the present moment. He felt confident there never was a Sovereign who exercised a greater or more beneficent influence upon the destinies of this country than the Sovereign who now reigned. He believed, likewise, that if the House of Lords had the wisdom to accommodate themselves to the position which the changed circumstances of the country and the Constitution pointed out, their influence, though less direct, would not be less substantial; that they might still remain, in the language of one of the most distinguished of their order, "Strong in ancient association and the memory of immortal services." He did not stop to criticise the particulars of this act, having satisfied himself to the best of his judgment that it was neither illegal nor unconstitutional. He looked at the substance of the thing. It seemed to him that the Government had only exercised the power which both Houses of Parliament and the Sovereign had confided to them, and he believed that in confirming the decision of the House of Commons they had given effect to the the will of the nation.
I hope it will not be thought discourteous to my hon. and learned Friend, or to the hon. Member for Brighton (Mr. Fawcett), if I say I feel a desire and even an ambition somewhat to limit the field of this debate. The hon. Member for Brighton has given expression to his constitutional views and his opinion as to the complete reconstruction of the House of Lords. We have had from my hon. and learned Friend historical readings without end, and the whole course of the 17th century has been brought under review. I am glad to say that my hon. and learned Friend has taken occasion to modify a statement he made the other night. The other night we understood from him that there was no Army in the reign of 1684 Charles II. To-night we have understood from him that there was an Army in the reign of Charles II.
§ MR. VERNON HARCOURT
I stated the other night that Parliament and the Constitution recognized no standing Army during the reign of Charles II.
I understood my hon. and learned Friend to say that the Act did not recognize an Army, or that there was no Army. Since that night my hon. and learned Friend has found there was an Army. There were regiments of the Regular forces in the time of Charles II., and I refer to that merely in order to be permitted to put in a general plea that we are not to be understood to assent to every historical statement that is made because we listen in silence. My hon. and learned Friend has given his verson of the impeachment of Danby, totally different to that which I have read in history. I have always understood that Danby was impeached on account of certain transactions with France, and his negotiations in connection with the subsidies of Louis XIV. We have had the doctrine of the Bill of Rights, and the struggle with the Crown at the end of last century, on which subjects I own my hon. and learned Friend has spoken with a critical ability and facility which are most enviable, but on which I do not feel called upon to follow him on the 15th of August in the midst of the business in which we are engaged, and with the business we have to do still before us. But some practical points have been raised by my hon. and learned Friend, and by my hon. Friend the Member for Brighton, to which I wish to advert. But, before doing so, I must meet my hon. Friend the Member for Brighton with a distinct and emphatic contradiction of his statement that three or four years ago both parties in this House were deeply implicated in bidding for Ultramontane favour. My hon. Friend has a perfect right if he pleases to impute to those who sit on this bench any opinions or any proceedings, however we may disapprove of them; but I deny that he has a right to treat the existence of those proceedings and of those opinions as things well known when he has no evidence whatever to give in support of his highly disparaging and defaming accusations. Now, with regard to the 1685 practical part of the speeches that we have heard—I mean so far as they are critical on the proceedings of the Government; for I ought to say, far be it from me to debate the other half of my hon. Friend's accusation. It is not for me to defend the other side of the House when they are charged with the guilt—and a very serious charge it is—of bidding for Ultramontane favour. Both my hon. and learned Friend and my hon. Friend the Member for Brighton agreed in pointing out what they think gross error on the part of the Government. They say that all these difficulties might have been avoided. They say this with the utmost confidence. I do not see that any shade of doubt or difficulty crosses the minds of either of those hon. Gentlemen with regard to any course they take. To them all things are clear and lucid, owing to the piercing character of the intellects which they possess—so different from the dull brains of common men and official plodders. But still I must bring to book any practical suggestions when they are brought before me. Infinite recrimination; a Vote of Censure passed on the Government by one branch of the Legislature, and that vote having taken no practical effect—all that might have been avoided, we have now learnt, if only the Government had taken the plain and simple course at the commencement of the Session of coming to this House with an Address praying Her Majesty to exercise her power of abolishing purchase, and promising to provide the means of compensation. That is the plan which we are arraigned for not having pursued. It does not appear to have occurred to either of these Gentlemen that the House of Commons would then have put itself in the position of undertaking, by its own authority, to provide funds for the purpose of compensating a class of gentlemen for an habitual breach of the law. That is the position in which they think it would have been creditable for the House of Commons and the Government to stand, and which was to relieve us from all our difficulties. If we have got into a difficulty we have done it by advisedly refraining from any course so unhappy as that which has just been indicated. We have got into our difficulty by our desire to respect the law; because having determined, so far as depended upon us, to put down the ille- 1686 gality of over-regulation prices, we would not ask the House of Commons to accompany us, or assist us, in any but the most constitutional form of attaining that great public object. My hon. Friend the Member for Brighton said he would rather have had purchase continued for 10 years than that this Warrant should have been issued; and yet he would not have scrupled to promise to pay the money necessary for the compensation for an illegal traffic. We reply to him, that rather than have asked the House of Commons to come forward in the face of day and assure the Crown, in defiance of the law, that it was ready to vote this sum for the payment of over-regulation prices while they stood condemned by law, we would sooner have seen the system of purchase continued for 10 years. The right hon. Gentleman the Member for Buckinghamshire is not in his place, but that is no reason why I should not reply to a challenge which was given by him at the commencement of this debate, and which challenge I think it was perfectly fair for him to have delivered. In the first place, he made a very ingenious argument, as I thought. He said—"When you sent this Bill to the House of Lords it proposed to give a very large sum of public money for the attainment of a great public object—that is to say, the final extinction of purchase. When the Bill comes back from the House of Lords the consideration which you give is still in the Bill, every farthing of the money you have to pay, but the equivalent for which you give it—the final extinction of purchase—is not in the Bill, because under the Act of 1809 purchase may be revived to-morrow." I must say that argument was not easy to reply to. It was a very severe and very just criticism upon the course that has been taken by the other House of Parliament. The Bill has come down to us without an absolute statutory security against the revival of purchase which it possessed when it went from this to the other House of Parliament, but that is not the fault of this House—it is the product of legislative wisdom in "another place." But the practical question for us is—are we on that account to decline to accept the Amendments of the Lords? I say that although we do not obtain by the Bill the full statutory security which, when it left the House of Commons, it gave 1687 us, yet I am willing to trust to the vigilance of this House in future years, and the fixed conviction of the people, to prevent the re-appearance amongst us of any such virulent mischief as would result from the revival of the system of purchase. But the right hon. Gentleman also challenged us upon the question whether the advice given to Her Majesty was to abolish purchase by the issue of a Warrant in the exercise of a statutory power or in the exercise of the Prerogative. I frankly own that in giving advice to Her Majesty to issue a Warrant for the abolition of purchase, we did not think it necessary to put Her Majesty through a course of training upon the nature of a statute and the nature of the Prerogative to the same extent as Members of this House have to undergo. We advised Her Majesty that she was in full possession of undoubted legal power, and that there was a perfectly adequate occasion for the exercise of that power. My hon. and learned Friend who has just sat down has been severe beyond description upon the Secretary for War and myself, whom he denies to be responsible Ministers—at all events, he has complained that no responsible Minister has yet spoken on the subject. My hon. and learned Friend may be anticipating a fate that is impending over us, and he may have the credit, for ought I know, of precipitating the act of doom; but it has not occurred yet. Now, whatever may be said as to our lack of statesmanship, I think it is difficult to deny that we are responsible Ministers, or that we have given our views to the House on this question. [Mr. VERNON HARCOURT: I said in the course of this debate.] My hon. and learned Friend may have meant that; but he did not use those words, and he even referred to debates that have occurred elsewhere. My right hon. Friend near me, and myself, spoke in terms as decided as we could use with regard to our view of the character of the act that has been done. Our opinion is that it is not necessary to go back minutely into the history of the powers exercised by the Crown with reference to purchase in the Army before the Act of 1809. I can conceive different opinions on the subject of the power in its origin, and for my own part I look upon it not so much as a Prerogative, but rather as an abuse practised and sanctioned by the Crown; 1688 but however that may be, it is certain that from the period of 1809 there was in existence a statutory power; that under that statutory power the Queen was authorized to permit purchase, and under that statutory power she was also empowered to decline to authorize purchase. My hon. and learned Friend the Attorney General supplied me with an excellent illustration of the argument that is very palpable and undeniable with regard to the powers of the Crown under the Act of 1809. Take the parallel case of the Foreign. Enlistment Act, by which it is made penal to do certain things except by the licence of the Crown. I apprehend there is no doubt whatever that the Crown has in the first place the power of giving such licences to persons under the Act, thereby exempting from the penalties of the statute, and likewise that the Crown, by the withdrawal of those licences, would bring them again under the penalties of the statute. What we contend is that there was no Prerogative in the old sense of the word, and that when that power of the Crown, whatever it was, came to be clothed with the forms of an Act of Parliament expressing the mind and will of the Legislature, that became substantially the basis of the power, and both the permission and the withdrawal must be referred to their highest and not to a lower source — the authority of the united Legislature. It has been objected that we submitted a measure to Parliament and then took out of the measure a vital and central part of it, and put it into the hands of the Crown. That is not a course without precedent. I remember a precedent in my own time. In 1840 Lord Russell submitted to Parliament clauses in a Bill upon a subject which he stated he might have dealt with, not by the statutory authority of the Crown, but by the Prerogative of the Crown. They were clauses relating to the emigration of coolies from India to the Mauritius. Parliament first accepted the clauses, and then they were rejected in this House. After they had been rejected by this House they were taken up not by the same but by a succeeding Ministry, and the subject was dealt with by the authority of an Order in Council, and the Minister who dealt with it was Lord Derby when he was Secretary of State for the Colonies. But the real justification of this act is to be found 1689 in the intention with which it was done. Even if it was prerogative, still the House of Commons should have asked—"Was it done with a sufficient justifying object, or was it not?" And it was stated that in our opinion we were bound to show that there was a sufficient justifying object to require us to proceed. I am unable to admit the correctness of the declaration of the other House of Parliament, which states that there was an interposition of the Executive during the progress of the measure submitted to Parliament. [Sir STAFFORD NORTHCOTE: Hear, hear!] I challenge my right hon. Friend's cheer, and I say that the measure was not in progress, for it had been laid aside by the other House. What took place? The second reading of the Bill was moved, but the Bill was not rejected. It was not finally cast out of Parliament, but it was deliberately laid aside. The House of Lords declined to entertain the Motion for the second reading then, but it did not appoint any other time for the second reading, and my right hon. Friend knows perfectly well that the usage is that when a Bill has been met by a hostile Motion upon the second reading, and that Motion has been carried, the Bill drops to the ground. To say that the Bill was in abeyance is intelligible; but to call it "in progress" is a pure and simple abuse of terms. Do not let it be thought that, as far as the Government is concerned, we have acted in a spirit of word-catching in the arguments we have used about Prerogative and statute. There is really an important practical difference in this matter. The speeches of the hon. and learned Member for Finsbury (Mr. W. M. Torrens) and the hon. Member for Brighton (Mr. Fawcett) are full of prerogative from one end to the other. Why is that? It is a word used ad invidiam, because in the sound of that word "prerogative" there is something that leads the popular mind to think it is beyond the licence of strict and well-defined law. Prerogative may, as the hon. and learned Member for Finsbury said, sometimes be dormant and sometimes elastic. In this case the power, whatever it was, so far from being dormant, was one which had been exercised almost every day during the natural lives of every one of us, and so far from its being elastic, it was a power as 1690 strictly defined by statute as it could possibly be. But there was a reason why we have been anxious to dispel these misunderstandings and to get rid of that invidious use of the word, which we think has been employed, not entirely by political opponents, for the purpose of giving an invidious character to an Act which upon substantial grounds it was difficult to assail. It is not marvellous to think how Gentlemen can arrive at entirely opposite conclusions on the same subject; but it is marvellous to think how in this House able men can discuss by the hour acts of which they disapprove, and yet entirely put out of sight that which a moment's observation would show them to be the main point of their opponent's case. To-day we have heard the hon. Member for Brighton, the other day we heard the hon. Member for Finsbury, dwell upon this subject and talk of the evils of Prerogative, the danger of Prerogative, the horror of this dark shadow impending over the House of Commons and threatening its constitutional liberties. That is all very well; but in neither of those speeches was there mentioned that which every man knows to be the main, if not almost the sole, justification for what the Government did. Upon what have we justified our acts? Upon this—that the first duty of the Executive is to put down gross illegality, which was carried on by public servants within our knowledge. Is it not marvellous that Gentlemen of character, ability, and popular principles, who have complimented one another in their speeches on account of the extraordinary merit with which they have discussed the question, can bring these imputations and enlarge upon them, and yet be totally ignorant of this really startling fact of the gross illegality of over-regulation prices, which is the sole or the main justification of the Government? If it had only been that we were the opponents of purchase, if it had been only the authority of the House of Commons as against the House of Lords, I could understand the arguments of those who might have said—"You should have trusted to the action of opinion; you should have done in this case as you have done in many others; you should have waited until another Session of Parliament had come, and then again have argued the case, and gone back to the door of the House of Lords, relying 1691 upon it that that House would not repeatedly refuse the desire of the popular branch of the Legislature," but that was not the case. The fact was, that we had certified to us by the highest authority the existence of a system which could not be too severely condemned for its mischievous results. It was not only a breach of the law, but also a breach by servants of the Crown, who were so subtlety associated with the exercise of privileges granted under a warrant of the Crown, that the two had become absolutely inseparable, and that, if that illegality continued, the nature of the responsibility attaching to it must have rested on the heads of the Executive Government alone. When next my hon. Friends discuss this question do not let them leave out of the case that which constitutes the whole argument of their adversary, for no progress can be made in that way. The true way to make progress in a controversy is to endeavour to appreciate the arguments of your adversary, boldly to grapple with them, and manfully to overturn them if you can; but you should never stoop and go on one side as if you did not see the argument, and argue the question against something that you can easily knock over, but which is not the case that your adversary has set up and is prepared to defend. We are sensible, as the Attorney General said, that it is a grave matter, and my right hon. Friend the Member for North Devon (Sir Stafford Northcote) intimated that it was a grave step to withdraw a subject from the cognizance of Parliament. We do not deny that we place that in one scale, and in the other we place not merely the impolicy of opposing the authority of the House of Commons, but also that gross illegality which we knew, and which it was our absolute duty to bring to an end. Did we not do this surreptitiously? No; we did it with full notice. The right hon. Baronet (Sir Stafford Northcote) was not present during the debates on the Army Regulation Bill, and I condole with him on his absence. If he had been here he would have heard declarations from my right hon. Friend who was the responsible Minister in the case, from myself, and from others, distinctly conveying to the House at different stages of the Bill, that come what might with respect to the measure, our duty was distinct with regard to the 1692 illegality of over-regulation prices, now that that illegality had been distinctly certified. Nor did this depend on the acts of the Government alone. The right hon. Gentleman the Member for Oxford University (Mr. G. Hardy) saw the meaning of these declarations, and put upon them a construction which was not true, but which showed that he well knew our intentions with regard to the matter, for he said that by abolishing purchase we were going to visit upon the officers of the Army a fault for which they were not responsible. The right hon. Gentleman the Member for Morpeth (Sir George Grey) entered into the same view, and indicated in the course of the debate his conviction that, quite apart from the question of abolition, it was impossible that over-regulation prices should be permitted to continue. We, therefore, did not seek to shroud in the dark the intentions that we entertained. We proceeded by the only way open to us. It is true that my hon. and learned Friend the Member for Oxford (Mr. V. Harcourt) has pointed out another way, but for us that way was totally impossible. He proposed that there should be an Address at the commencement of the Session. I know he is an opponent to the payment of over-regulation prices, and he therefore might consistently have said that the House of Commons might have addressed the Crown, promising to pay over-regulation prices. I admit that.
§ MR. VERNON HARCOURT
What I proposed was an Address to the Crown to abolish purchase, and a Bill to provide for the payment of the value of commissions.
Then what I have said entirely falls to the ground. I think my hon. Friend the Member for Brighton stated that our Address might contain a promise to pay over-regulation prices.
§ MR. FAWCETT
What I said was that the House might be willing to vote the money; but I had always voted against it.
My hon. Friend must have known that it was impossible for us to have adopted the course which he proposed. He could not ask the House to abolish purchase without paying over-regulation prices, for we believed such a course to be opposed to honour and justice. The hon. and 1693 learned Member for Oxford says he would have had an Address to abolish purchase, and a Bill to provide the money; but what would he have gained? I admit the simplicity of the method proposed by the hon. Member for Brighton; but what in the world should we have gained by the plan of the hon. and learned Member for Oxford? With an Address to boot, we should have had to fight the question of purchase twice over. First on the Address and then on the Bill. We proceeded in the only way that was open to us, except that of tolerating the continued existence of the illegality of over-regulation prices. It was not an immaterial point in our case that we knew we were proceeding in conformity with the declared mind of the House of Commons. It is for thus using a legal power to put down an illegal practice that we have been censured by the House of Lords. I admit the difficulty in which the House of Lords was placed after its first ill-timed and unhappy vote, which the hon. Member for Brighton has described as simply an expression of a desire to know something more about our intentions with respect to the Army, but which is a vote declaring that the House of Lords would not consent to touch the illegality of over-regulation prices until it had placed before it—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.The House of Lords was encouraged not to vote until it had placed before it not merely a scheme of retirement, not the moderate demands in comparison which were made in this House, but a full and detailed statement of all that the Government intended to do for the improvement of the Army, and until then not to lend a hand to put an end to a practice that was carried on in defiance of the law. I do not wonder that after such a vote the House of Lords saw the difficulty of its position. It had taken a very light and false view of the evil of this gross, crying, and flagrant illegality. The Government would not enter into that view. We were thereby placed in conflict with the House of Lords and we have suffered. We do not at all 1694 make light of the gravity of the censure delivered by the House of Lords; but an authority higher than that of that House resides in the public opinion of this country, and with the country our justification is that the end and aim of our act is to put down a constant and flagrant violation of the law, and much am I mistaken if that vindication is not one that will and does command the assent of the British nation. The vote of the House of Lords appears to convey that until it could make up its mind as to the proper information to be given to it with respect to the future organization of the Army, illegality was to go rampant and unpunished. To that conclusion it was utterly impossible for us to assent, and if we have suffered from our determination to maintain the law, and are making ourselves responsible for the advice we have given to the Queen, we must contentedly bear with it; but do not let my hon. and learned Friend the Member for Oxford suppose that there has been, or is, the slightest ambiguity in our language on this subject. I do not think my hon. and learned Friend was correct in imputing to the Solicitor General the doctrine of Prerogative to which he referred; for my hon. and learned Friend quoted a statute with respect to which, there is a point which has not been finally settled in debate between those two great authorities. But the language of the Government, of the Law Officers, and other Members of the Government, has been consistent upon this subject. We have called in aid the powers which were given us by the statute law of the country for the purpose of putting down that which was alike fatal to the authority of the law and injurious to the best interests of the country.
§ MR. G. B. GREGORY
said, he would endeavour to limit the field of discussion, though he could not but think that the Prerogative of the Crown entered to a very great extent into the consideration of this question, and that it must be treated on that footing. From the earliest times the Crown had been held responsible for the defence of the Realm and the preservation of internal tranquillity; hence it had the regulation of an armed force, the supplies for which were voted by Parliament. For the maintenance of discipline the Mutiny Act was passed from time to time giving the Sovereign 1695 powers more extended than those of Prerogative. Thus the Prerogative was supported and supplemented by Parliament, but commissions emanated from the Crown. This was the state of things up to the time of George III. The only Warrant which attempted to extinguish purchase was a Warrant of William III., which was illegal on the face of it. The system of purchase grew up, and was recognized, the Act of George III. specially exempting from its operation military offices and making them subject to regulations drawn up by the Crown. That Act conferred no dispensing powers whatever on the Crown, unless it was with respect to the penalties which might be incurred by the parties. The Act should be read in conjunction with what took place before and afterwards, and now came the question what was a commission? It was a licence to a person to exercise a certain right; it granted him certain pay, and involved a right to sell, and, therefore, created a distinct pecuniary interest. He would lay down this proposition—that a licence coupled with an interest amounted to a grant, and it had been so held in law over and over again; and, if he was right in that, these commissions, given under these circumstances, with these incidents attached to them, were in fact grants; and they were brought face to face with the question whether a grant from the Crown was revocable or not. Would any hon. Member say it was? Would they say it of the grant of a charter? Would they say that the Crown could cancel, withdraw, or abrogate a grant which it had once made, supposing there were no special circumstances to invalidate it? The Stuarts were desirous of abrogating the charters of some of the corporations; but they never had recourse to the Royal Prerogative for the purpose, although they had the charters submitted to Judges who were subservient to the Crown. Patents were grants from the Crown, and they could be repealed only when they had been granted upon false representations, and when this was made out to the satisfaction of a Court of Law. It surprised him to hear the Solicitor General say that no one had questioned the legality of this act, because its legality was strongly contested by a noble Lord, in "another place." If he had raised a question as to the legality of this Act, 1696 let the House consider how serious the consequences were. The Crown had been advised to exercise its Prerogative for the purpose of putting a certain degree of pressure upon the House of Lords; there could be no doubt of that; they had refused to pass the Bill until supplied with certain information which the Government had over and over again declined to supply, and therefore the Bill, but upon the issue of the Warrant, would have been dropped. It was necessary to preserve the rights of the officers to compensation, and the Crown had therefore been advised to commit an act of questionable legality for the purpose of putting a pressure on the Lords. What were they to say to the constitutional character of that act? It was with considerable surprise he heard the Prime Minister say that in advising the Crown he did not submit to Her Majesty, nor even take an opinion on his own behalf, whether it was an act of Prerogative or was exercised under statute, whether it was legal in one sense or in the other; he merely advised Her Majesty to issue a Warrant, and of the grounds on which she was to issue it Her Majesty, as he understood, was left completely ignorant. This, he believed, was the true state of the case, and it certainly led one to ask for what all this was done. As to the immediate necessity for the abolition of purchase, it had been as illegal for years as it was now, and the question might well have waited a year until the Government were in possession of the information they required. Therefore he could not help thinking there was some reason other than that alleged for advising the Queen to issue a document which brought the Crown into direct antagonism with those who would maintain constitutional usage.
§ COLONEL BARTTELOT
demanded why, if the far-fetched statement of the right hon. Gentleman at the head of the Government was to be taken literally, some more prompt means of getting rid of the system had not been resorted to, for it would almost seem as if neither himself nor his friends could sleep quietly with the frightful burden of this illegality on their minds. He could have believed in the sincerity of the Government if, when they entered upon office, they had honestly and boldly condemned the system. He regretted that they 1697 should be discussing the matter at the fag-end of a wearying Session; they ought to have discussed it immediately the Warrant was issued; the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli) neglected his duty as Leader of the Opposition when he did not rise in his place and challenge the conduct of the Government, and carry that challenge to the decision of a vote; and he firmly believed at the time that this was the course which was going to be pursued. He now offered his thanks to the hon. Member for Finsbury (Mr. W. M. Torrens) for having given them the opportunity of placing it upon record that the independent Members would not, if they could possibly help it, allow any Government to infringe, or attempt to infringe, the rights and the privileges of Parliament. On the 16th of February they were told by the right hon. Gentleman the Secretary of State for War that it would be impossible for purchase officers of the Army to interchange with the non-purchase officers of the Reserve forces, and that they must therefore consider whether they would continue or abolish the purchase system; but nothing was said of a Royal Warrant. Did not the Government know as much then as they did now; and, if they did, would it not have been better for the House and the country if the Government had stated distinctly that if the House did not sanction the abolition of purchase resort would be had to a Royal Warrant? If the Prime Minister had stated that, the House would have resented it as one of the greatest insults that could be cast upon it. When a grant of money was asked for last year for the abolition of cornetcies and ensigncies, nothing was said about the Government being hampered by the existence of purchase. If the right hon. Gentleman at the head of the Government had wished to act honestly and fairly with regard to the House of Lords, he could not have done better than to have employed the noble Leader of that House to ascertain whether, by a small concession, something could not be arranged after the rejection of the second reading of the Bill. Such a course would have placed the Government in a far better position both with regard to the Houses of Parliament and to the country. Was not the issue of the Warrant at the moment regarded as a great outrage? What did 1698 the leading organ of public opinion say at the time—Is it desirable, then, that the will of a Minister, when not expressed by a majority of the House of Commons, should be supreme? We cannot believe that those who so inconsiderately exulted yesterday in the blow which has been inflicted on the Lords will see in it matter for rejoicing when they clearly understand its scope and meaning.He regretted the remarks which had been made by the Attorney General with regard to the hon. Member for Brighton (Mr. Fawcett), who was entitled to the thanks of the House for manfully and openly expressing his convictions; and he thought the hon. Member had put the matter very clearly when he suggested that during the Recess the Prime Minister might adopt an arbitrary plan of dealing with Irish education. Supposing the right hon. Gentleman chose to give a charter to a Roman Catholic University in Ireland, how would that be received by both sides of the House? This was a coast on which there were shoals ahead for the right hon. Gentleman; and, if he could do one thing which strained the Constitution to the utmost, he might do another, even though it recoiled upon him with fatal rapidity. In conclusion, he hoped he should always be found with those who were willing to defend the rights and privileges of both Houses of Parliament, because in doing that they maintained the liberties of the country.
MR. HINDE PALMER
thought it desirable that occasionally great constitutional principles should be brought under the consideration of Parliament. It was fortunate that the power of the Crown had been in this case exercised in a manner which could be fully justified. As the Prime Minister had stated, a legal power had been employed to put an end to an illegal practice; and he considered that the House was indebted to the Attorney General for the concise explanations he had given in justification of the exercise of the power of the Crown under statute. The Act of 1809, following that of Edward VI., under which Lord Chancellor Macclesfield was impeached for trafficking in judicial appointments, brought the sale of commissions in the Army within the same category, and made all such dealings criminal. But it empowered the Crown to exempt commissions in the Army from the offices, the sale of which was prohibited on the condition that the Crown 1699 should regulate the prices to be paid. If the Crown had chosen at any time to abolish prices the thing would have come to an end at once; there was a perfect right under the statute to say that no prices at all should be paid for commissions, and the effect would have been to abolish the sale and purchase of commissions. The existing power of total abolition had been expressly recognized from year to year by the 78th section of the Mutiny Act, which imposed a penalty on the sale and purchase of commissions; and he was somewhat surprised that this section had been so little referred to. At all events, the Royal Prerogative had been exercised in accordance with the views of the majority of the House, and, he believed, in accordance with the views of the constituencies at large. It had been said, why did not the House address the Crown to exercise the Royal Prerogative? But if the House of Commons, after the House of Lords had taken the course which it adopted, had addressed the Crown to issue a Royal Warrant, nothing could have more directly tended to bring the two branches of the Legislature into hostile collision. He was firmly convinced, whatever might be the frightful chimeras conjured up by those who talked of the Royal Prerogative in such strong language, that both the House of Commons and the people approved the conduct of the Government in advising the Crown to exercise, in a legal way, the legal power it possessed for the purpose of abolishing an illegal practice.
§ MR. EASTWICK
said, that if this question had been one purely of constitutional law he should not have interfered in the discussion; but as two hon. and learned Gentlemen who were the coryphaei of debate on such a subject, far from agreeing together, completely neutralized each other's authority, he felt that other Members were thrown back on their own common sense. Looking then at the matter with the eye of common sense, there appeared to be two methods of dealing with it—either by Royal Warrant or by adopting a regular Parliamentary proceeding. The Cabinet decided in favour of the latter course; but when the Bill was sent up to the House of Lords the right hon. Gentleman at the head of the Government turned round and made use of the Royal Prerogative. Though that mode might 1700 have been reasonable in the first instance it was not to be recommended afterwards, for it then had the appearance of overruling the House of Lords. The right hon. Gentleman stated that he wished, first of all, to ascertain the opinion of the House of Commons; but upon this question the House of Commons could not be said to represent the opinion of the country. It had been pointed out that the only great public meeting held on this subject objected to the payment of a vast sum of money for the purpose of abolishing purchase; and he believed no hon. Member would dare to assert that his constituents would be ready to agree to such an enormous expenditure. He should be glad to find that the constituencies were willing to do so; but this view could only be found out by an appeal to the country. The right hon. Gentleman spoke of the sale of commissions as "a gross crime and a flagrant illegality." These were brave words; but when the Secretary of State for War introduced this subject he spoke in a mild and unimpressive tone which conveyed no idea that the Government looked upon the matter so seriously. When the Government found a considerable minority in the House of Commons, comprising the representatives of the Army on both sides, together with a large majority in the other House, opposed to them, their proper course would have been to dissolve Parliament, and appeal to the country.
§ MR. W. FOWLER
observed that the right hon. Gentleman at the head of the Government gave as an excuse, for an act which he seemed in some degree to admit was a doubtful act, that these payments of over-regulation prices were scandalous and illegal. He was surprised when he heard that declaration, because the House was asked to give by Act of Parliament compensation for those very over-regulation prices. No doubt, the Government had been placed by the vote of the other House in a position of great difficulty; but he would rather that the Session should have been barren altogether than have seen the Constitution strained as it had been by this proceeding. The action of the Government had been extremely unfortunate; but he hoped after these debates that some time would elapse before there was a repetition of such conduct. Still the Prerogative remained as before, for they had not 1701 abolished purchase by the Bill as it now stood. They might say there had been legislation without Parliament, and in defiance of the two Houses. He did not, however, attach so much importance to what had now occurred; but he feared that it might be made a precedent, and they did not know how soon the act might be repeated unless it received the reprobation of the House. It would be no use taking a division in the present state of the House; but, as an independent Member, he was glad to have had an opportunity of stating that he entirely disapproved of the course taken by the Government, as inconsistent with the Constitution, even although it might be in accordance with the letter of the law.
THE SOLICITOR GENERAL
said, that before the House quitted the subject he was anxious to say a word or two, as the statement he had made on a former occasion had been challenged by the hon. and learned Member for Oxford (Mr. V. Harcourt). He made a short statement on Friday last, and he understood that the hon. and learned Member complained that he had received no intimation that such a statement was to be made. He had, however, confined himself to a simple statement of fact, and it did not appear to him that the matter required that he should give Notice on the subject. On Thursday last he had stated that with the internal management and regulation of the Army the Executive had nothing to do, and he quoted a statement which he said was still the law. Of course, he admitted that any person occupying the position he held ought to be accurate in his statements; but the hon. and learned Gentleman first of all misrepresented what he had said by stating that he had alleged that Parliament had nothing to do with the Army. He was not so foolish as to make such a statement; but to assert that with the internal management and regulation of the Army Parliament had nothing to do was a different proposition, and was consistent with common sense. The hon. and learned Gentleman went on to say that the statute referred to had long since been repealed. Now, what he stated on Friday he would deliberately re-state. So far from the statute being repealed, it was a statute which, though altered in some of its provisions and superseded in some others, 1702 stood on the Statute Book until 1863. At that time the Statute Law Revision Act was passed, dealing with 700 statutes, repealing some wholly, others partly, and altering others, and with this particular statute it dealt in the following way:—It repealed the whole of the Act with the exception of a portion of the Preamble, and the portion of the Preamble not repealed contained the words which he had quoted on a previous occasion, and which were re-sanctioned and re-enacted by the Parliament of 1863. It was remarkable, too, that in dealing with this statute, which had become obsolete in many of its provisions and superseded in others, the Parliament of 1863 provided in express terms that the Preamble containing the words he had referred to should stand upon the Statute Book. Moreover, since Friday he had found that the Act of 1863 was preceded by a Bill, as all Acts were, and the Bill was laid upon the Table with certain annotations, and it was there stated that the portion of the Preamble to the Statute of Charles II. excepted from repeal was proposed to be retained as a Parliamentary recognition of the right of the Crown to the supreme command of the Militia and all forces by sea and land.
THE SOLICITOR GENERAL
explained that there was a reference in it to Stephen's Commentaries and an allusion to Ruffhead's Edition of the Statutes. The hon. and learned Gentleman was right in saying that Preambles had no force in themselves; but a Preamble of the kind he had mentioned had an important force, as showing by a Parliamentary declaration what the law was, and that Preamble was kept on the Statute Book deliberately and not by accident, the Parliament of 1863 re-sanctioning and re-enacting the statement as to the right of the Crown which he had described. So far as his argument was concerned, it was not at all material; but inasmuch as his accuracy had been impugned, he thought it his duty, however low an opinion he had of his ability to fill the post he occupied, to place before the House the exact state of the case, and enable it to form an opinion as to whether he or the hon. and learned Gentleman was accurate. The hon. and learned Gentleman further said that this statute 1703 had no reference to any force except the Militia; but the words in the Preamble were "all forces by sea and land." There were at least three regiments embodied in 1661, and several more shortly after that period. It was, he thought, a strong expression on the part of the hon. and learned Gentleman to talk about teaching him the A B C of constitutional law; but if he did not teach him more accurately on other points than he had done on this, he would not teach him very much that he should care to learn. The hon. and learned Gentleman had indulged in language which he thought hardly warrantable, and he could only account for it by supposing that he had caught up this new edition of the statutes, and not finding this enactment in its place under the Statutes of Charles II., could not resist the temptation of making a display of his fancied, knowledge, and he had accompanied it by observations which he (the Solicitor General) had not provoked, and which he trusted the House would think wholly undeserved. He was quite aware that nothing he could say would have any effect on the hon. and learned Gentleman, or induce him to refrain from making such attacks; but, at all events, this explanation would be the means of cautioning persons as to how far his authority could be relied on for accuracy of statement.
§ MR. VERNON HARCOURT
said, he would be extremely sorry to prolong the discussion in the tone of anger which had been imparted into it by the hon. and learned Solicitor General, whom, though the courtesy was denied, to himself, he should still call his learned Friend. He certainly thought that if in the discussion of an important question one heard a statement which he believed to be inaccurate, he was justified in correcting it. In doing so in the instance in question, he had too much respect for his hon. and learned Friend to impugn his knowledge or his learning; and he was sure if his hon. and learned Friend had forgotten anything, he had forgotten a great deal more than he (Mr. Harcourt) ever knew; but he did not think that it was improper on his part to desire his hon. and learned Friend, when he referred to the annotation, to read the whole of it. His hon. and learned Friend had read the part which aided his argument; but there was another part which he did not read. 1704 These were the words he did not read:—"Marginal Note to the Statute 12 Charles II., c. 6, s. 13. Spent"—that was, exhausted—"in Ruffhead's Edition of the Statutes treated as expired, and also as repealed by 2 George III., c. 12." He merely wished to add these words to the part read by his hon. and learned Friend.
§ MR. W. M. TORRENS
When this subject was discussed the other night, the Solicitor General, to my astonishment, came down with a quotation from the Jacobite legislation of 1660, which, he said, was the justification of the Government for now taking the administrative regulation of the Army out of the control of Parliament. The Solicitor General said that statute was still in force, and did the House the favour to read the Preamble, which, as it stood, and as confessed by him, was a mere shred of a Preamble, incapable of being read by itself grammatically, and without any consequential or enacting force whatever. Now, what was the meaning of that statute? Was the question in 1660 one between Crown and Parliament such as was now raised? The Solicitor General was very tender when told that he had yet to learn the ABC of Parliamentary law; but he did not hesitate, in his disquisition the other night, to tell us that any child ought to have known this statute. On that occasion the Solicitor General assumed a somewhat supercilious air towards those who, like my right hon. Friends (Mr. Horsman and Mr. Bouverie), and my hon. and gallant Friend (Mr. Osborne), have, like myself, protested, as constitutional Liberals, against the proceedings of the Government in this matter. The tables, however, are now turned; and it is the drummer who feels the lash.
§ MR. SPEAKER
said, that what had just occurred was a personal explanation; but the hon. Member seemed to be entering into a general debate.
§ MR. W. M. TORRENS
The Solicitor General has imported into his explanation matter leading to a general discussion of the Lords' Amendments, especially with regard to this fragment of a dead Act, and I therefore respectfully submit that it is open to me to criticise the doctrine so laid down. In the controversy between the hon. and learned Gentleman and the hon. and learned Member for Oxford (Mr. V. Harcourt) I do not meddle; but when this House is 1705 told from the Treasury bench, by an Adviser of the Crown, that we are barred from interfering with the organization and disposition of the Army by the mutilated preface to an Act 210 years old, notwithstanding all that has been said and done, fought for and won in the interval—then I humbly but firmly venture to submit that I have a right to object to such a dictum, not on personal but on public grounds; not for the purpose of proving the Solicitor General to be wrong, but that the independent Members of this House are right in denouncing such obsolete and obnoxious principles. The Parliament of 1660 will ever be remembered in our annals as that which passed the Act of Uniformity, the Five Mile Act, and the Test and Corporation Act. It was a Parliament abject in political spirit and reckless in religious bigotry. Happily for us little of its bad legislative work remains; and it certainly does seem strange that the Law Officer of a Government which has been brought into power by the Liberal party should be driven to rummage for statutable apology in the legislative waste paper basket of the Restoration. The Preamble of the Statute of Charles II. was nothing more than a recital that neither House of Parliament had, or could have, the right to levy war against the King. This was the statute which, as the Solicitor General avers, now forms a precedent and a justification of Ministers for the recent exercise of Prerogative. I will not say that every child knows, but at any rate most Members know that the Act of 1660 was passed in the hey-day of reaction, after war had been levied by the House of Commons against the Crown, and that it was drawn by Lord Clarendon in order that, if possible, such a thing should never happen again. But what on earth has the House of Commons now to do with such dead leaves of legislation? Notwithstanding the patronizing tone of the First Minister as to the customary law of Parliament, which he disclaims any intention to subvert, and soothingly admits to be, upon the whole, not a useless thing, I believe that the preservation of that customary law is more sacred and more worthy of care than many other things which we are anxious to preserve. It is easy to say that the customary law of Parliament is indefinable. So is the light of Heaven, so is 1706 the breath of morning, so is family affection, so are the best blessings we possess and the noblest rights that we enjoy. The liberty and law of Parliament existed long before the present Government had any being, and will, I trust, continue long after its functions have expired. The Solicitor General thought fit the other evening to put into my mouth a term which I certainly did not employ. I forbore to correct the misstatement at the time; but I wish to do so now. I did not speak of the Royal Warrant as an illegal act, or use the word illegal as it is ordinarily used and understood when we speak of offences against provisions of statute law. I am not in the habit of using loose phrases in addressing this House. I do not believe that I uttered the word imputed to me at all. But I will tell the House who did use the word—the Master of the Rolls, who is reported to have said in another place—Since the Bill of Rights there has been no instance of such an interference by the Crown with the action of the Legislature. A Prerogative is illegal if it affects the private interests of any person whatsoever. In this instance it affects the interests of a large number of persons. The cases cited as precedents are really not precedents at all. The issuing of the Warrant was a course the legality of which is certainly open to question. It is neither sanctioned by the Bill of Rights nor independent of it. This is a great constitutional question which has not been raised since 1690, and on which the opinion of the Judges ought to have been taken.I am content to err, if I do err, in such company as that of Lord Romilly who spoke, and Lord Russell who voted against this unconstitutional proceeding. In past times there were Leaders of this House who were content to abide by the principles of the Revolution, and who instructed their followers to follow in the same path. But all that now seems past and gone. Men who profess to have changed their opinions, and have crossed the floor late in life, appear to be but ill-acquainted with the principles which we were taught in our youth, and from which we have never wavered. We are graciously told by our new teachers that politically we are but children, because we have not forgotten the rudimental maxims of Parliamentary government. For my part, I hope we shall never grow old enough to be the passive or plastic instruments of a Prerogative policy or an un-Parliamentary system. I do not think the conduct of the House or the 1707 business of the House has improved under the new method of managing affairs. I think I remember that as much legislation has been done in a short time by hon. Gentlemen opposite as has been left undone in a long time by the present Administration. The mode of dealing with this question is most unfortunate, and will not soon be forgotten. It may be drawn into a bad precedent in the future. At such a period of the Session, however, as this, and to rows of empty benches, it would be idle to spend time in raising formally the question of an additional Standing Order of which I have given Notice. But even if only a dozen Members follow me into the lobby, I will move next Session an addition to the Standing Orders, by which I shall endeavour to guard Parliament against the evil and the confusion which I think will arise from the course now adopted by the Government. It is discouraging to see the benches tenantless upon such a question. I regret especially the absence of one distinguished Member. The House has heard the learned Solicitor General's account of these transactions repudiated and effaced by the learned Attorney General. But a Member of the House, who stands still higher in the estimation of the public and the profession (Sir Roundell Palmer), has been absent from the discussion. How is this? No one who has watched his indefatigable career will grudge the hon. and learned Member for Richmond the health and leisure he may now be enjoying elsewhere; but remembering what sacrifices he has continually made in order to protect the Government and help them out of their difficulties, I cannot help thinking that if the heart of the hon. and learned Gentleman were in this cause he would not be absent to-day. Absent and silent, he may acquiesce, indeed, in what he cannot alter; but until I hear him say so, I can never believe that the hon. and learned Gentleman agrees with these Prerogative notions, or that he would have suggested the course which has been taken. The hon. and learned Member is at the head of his profession, and everybody recollects how he exalted that profession by relinquishing to another, without a murmur, its highest prize, sitting night after night in this House, after the arduous duties of the day, in order to give the Government 1708 and the House the benefit of his counsel. If such a man could show that I and those who think with me are all wrong, I should reluctantly feel constrained to submit. In the absence, however, of the hon. and learned Member I have ventured to express the doubts I feel on this question, and when I find Lord Westbury not saying a word in defence of the course taken by the Government, while the hon. and learned Member is absent, and the Master of the Rolls and Lord Cairns pronounce strongly against it, I think that more courteous and for-bearing language might have been used towards those who, in this House, have ventured to do what they believe to be their duty.
§ Question put, and agreed to.
§ Subsequent Amendments considered, and agreed to.