Order read, for resuming Adjourned Debate on Amendment proposed to Question [20th May],
That, by the Constitution of this Realm, no Forces may be raised or kept by the Crown in time of peace, without the consent of Parliament, within any part of the Dominions of the Crown, excepting only such Forces as may be actually serving within Her Majesty's Indian Possessions."—(The Marquess of Hartington.)
And which Amendment was,
To leave out from the word "That" to the end of the Question, in order to add the words "this House, being of opinion that the constitutional control of Parliament over the raising and employment of the Military Forces of the Crown is fully secured by the provisions of the Law, and by the undoubted power of this House to grant or refuse Supplies, considers it to be unnecessary and inexpedient to affirm any Resolution tending to weaken the hands of Her Majesty's Government in the present state of Foreign affairs,"—(Sir Michael Hicks-Beach,)
§ Question again proposed, "That the words proposed to be left out stand part of the Question."
§ Debate resumed.
§ MR. FAWCETT
, in reference to the debate of the previous night, said, there was no single point on which Ministers and their Supporters laid so much stress as that the act which the Leaders of the Opposition declared to be unconstitutional should not have been challenged by a direct Vote in the other House of Parliament. No one could feel more strongly than he did on that point, and he thanked the noble Lord the Leader of the Opposition in the House of Commons for his prompt determination to bring the conduct of the Government, in reference to the removal of the Indian troops, to a decision on the part of that House. With regard to what had been done by the Leader of the Opposition in "another place," Members of the House of Commons had no control over that. For his own part, he most heartily endorsed 363 what was said by the Prime Minister in "another place," when he said that bold phrases should always be met by corresponding acts; because, no matter what Party might be in power, that had always been the policy he himself (Mr. Fawcett) had endeavoured to pursue. Now, there was no taunt which the Treasury Bench seemed to think so effectual as to remind the front Opposition Bench of what the latter did when they were in power with regard to the Royal Warrant abolishing Purchase in the Army. But he (Mr. Fawcett) would remind the House that some of those who were now on the Opposition benches below the Gangway protested again and again against that Warrant. They appealed again and again to Mr. Disraeli—the then Leader of the Opposition—to give them an opportunity to show their objections to the course which the Government then adopted. Mr. Disraeli described that act as a "shameful conspiracy against the liberties of Parliament;" but he cared so little for those liberties of Parliament when the question of the Prerogative of the Crown was at stake, that he had not the courage to challenge the proceeding he denounced, and his "bold phrases" only ended in empty talk. He (Mr. Fawcett) knew that the impression prevailed that the question at issue involved so many legal technicalities and Constitutional questions, that no one but a Constitutional lawyer ought to presume to take part in the debate. He, however, did not accept that view. He desired to take it out of that trough of technicalities, so that he might discuss the subject in its broad political aspect, and he thought he should be able to show that by what the Government had done, a grave political issue was raised, upon which the English people generally were competent to express an opinion. It was perfectly idle, he maintained, for the Secretary of State for the Colonies and the Under Secretary of State for India to say that the act of the Government amounted to nothing more than the sending a single Madras regiment to Singapore, or allowing a few Indian troops to contend against a semi-barbarian Chief in Abyssinia. Showers of praise had been poured upon the Government by their Supporters, because of what they regarded, and what had been described, as "a magnificent display of new policy." 364 [Cheers from the Ministerial Benches.] Yes, that sentiment was cheered, and he was going to say other things which hon. Members opposite would also cheer. They had said that, after the movement of those Indian troops, Europe would see England in a different position. [Cheers.] Yes, that also was cheered, and hon. Members opposite would likewise cheer this—they said that Russia and every other European Power would see by that act that England did not rely simply on that military strength which was denned by the Mutiny Act; but that, in consequence of it, they would be made aware that they had to deal with a country who could draw inexhaustible supplies from an unlimited Indian Army. [Cheers.] This also would be cheered—they said that, whereas England formerly had a small Army, now she had a large Army, and was presented in a different aspect before admiring and terrified Europe. Well, all that sort of thing could not be proclaimed on a thousand platforms, and hon. Members opposite be permitted to come down to that House and, influenced by the exigencies of debate, attempt to minimize the act, of which they spoke in terms of such admiration, by saying that it was nothing more than had been done before; or, as he (Mr. Fawcett) had before observed, that it was the same as sending a Madras regiment to Singapore or a certain number of troops to Abyssinia. The question which the House had to consider was a simple one. In the first place, he, and those with whom he acted, maintained that no emergency existed in politics to justify the Government in pursuing a policy of secrecy and concealment towards the English Parliament; and, in the second place, they contended that even if such an emergency had occurred, the course which the Government had adoped was not that which ought to have been pursued. What, he would ask, was the evidence of emergency? The journals which were the most thorough-going in their support of the Ministry had over and over again declared that there was not the slightest justification for the secrecy which had been observed. The excuse of the right hon. Gentleman the Chancellor of the Exchequer was, that if the Government had taken Parliament into their confidence, difficulties would have been placed in the way of transport; 365 but a Member of the House, who was practically acquainted with, the shipping trade, had stated that if the Government had only announced frankly what they were about to do, they would have obtained the transport ships at a much less cost than they actually had to pay, and that would be conclusively proved, he was informed, when the Supplementary Estimates were laid upon the Table. But, even admitting that they had to pay £3 or £4 a-ton more for transports, were the resources of England, he would ask, so poor, that in order to save that paltry sum the Constitutional usages of the country were to be, to say the least of it, greatly strained? But the defence of the policy of secrecy by the Secretary of State for the Colonies and the Under Secretary of State for India, if not more substantial than the plea of the Chancellor of the Exchequer, involved considerations which suggested a more material issue. Their justification was, in effect, that if the Government had come down to Parliament and made known their intentions, they would have been hampered by Parliament, and that they were not certain of obtaining its approval. But the Government could not escape this dilemma—they were either certain that they could obtain the approval of Parliament for the employment of Indian troops, or they were not. If they were, the contention of the noble Leader of the Opposition—that what they might have done with the permission of Parliament as a military demonstration, would have been greatly strengthened, was irresistible. If they were not certain of obtaining the approval of Parliament, what was the position in which they placed the House when they set it at defiance. They set it at defiance, and prevented Parliament from discussing a question and expressing an opinion upon a subject on which they admitted there was some doubt. Nothing, to his mind, could be more fatal to the Privileges of that Assembly. Now, what had been the conduct of the Chancellor of the Exchequer? During the Easter Recess he (Mr. Fawcett) carefully abstained from saying a word in public on the subject. He thought it was quite possible the Chancellor of the Exchequer might have come down to the House, when it re-assembled, and given convincing proof that a case of emergency existed. The right hon. 366 Gentleman, however, did not utter a single syllable to that effect. He did not tender any apology, much less show any justification for the extraordinary course the Government had pursued. On the contrary, he treated the whole matter in the lightest possible manner, and as if they were dealing with the most indifferent question; and he coolly informed the House that the Government did not deem it necessary, nor, in his opinion, was it customary, that they should on such a subject communicate their decision to Parliament. Could there be any language employed more calculated to show that at that time the Chancellor of the Exchequer did not suppose that the Government were justified in what they had done on the plea of emergency? But admitting, for the sake of argument, that emergency did really exist, what was the course which the Government ought to have adopted? Without an hour's delay, they ought to have come down to the House, and said—"On our own responsibility, but in face of what we considered an emergency, we have acted, we know, illegally. We have illegally spent the money of India, and we ask you to pass at once a short Act which will give absolute security to the people of that country that any money which has been so expended shall be repaid." That was what might have been done, but what had not been done. Instead of that, the Chancellor of the Exchequer said that a Supplementary Estimate would be introduced; but was there ever such a shadow of Constitutional control presented for the acceptance of the House of Commons? Suppose they arrived at the conclusion that the expenditure incurred was useless and mischievous, in what position would they be placed? Then, when was the Indian Government to be re-imbursed the cost of this Expedition? No statement had been made as to when the Supplementary Estimate would be produced; if a Dissolution occurred, it might not be produced for months and months. But there was another matter in connection with the financial aspect of the question to which he desired to refer. He should like to know, moreover, whether, before spending the money, Her Majesty's Government had obtained the consent of the Council of the Secretary of State for India? because, if they had not, they had violated an essential principle of the 367 financial administration of India. But it was not merely with financial considerations that the House had to deal. No Indian troops could be moved to Europe without raising political questions of the greatest importance connected with England and India. The measure, therefore, was one on which the people of India and England had a right to be consulted. He was not, however, going to discuss prematurely the policy of employing Indian troops in Europe. It was not necessary to do so at present. If the course which the Government had taken was to continue, he did not see what possible good could result from hon. Members expending their time and their energies in simply going through the barren performance of registering the uncontrolled decrees of an uncontrollable Government. Some hon. Members had attempted to minimize the importance of the subject by saying that the Indian contingent numbered only 7,000 men; but the question really was, whether Her Majesty's Government were to be allowed to draw to an unlimited extent upon the military resources of India for a European war? There were hundreds of thousands of English citizens who objected to the employment of Indian troops in Europe, and who, whenever they had an opportunity of expressing their opinions on the subject, would show that they were not, as the Colonial Secretary had termed them, an "obscure section" of the English public. They objected to that employment on principle, and they felt that if England entered into a war, it would be a mean and ungenerous thing to throw the sacrifice of life and blood which that war would entail upon people who were not responsible for its being waged. Those to whom he referred felt that in the past England had been strong enough in her own resources to maintain and defend her position and reputation in Europe, and that what had been done before might be done again by the valour of British soldiers. Then, had Her Majesty's Government thought of the sequel, looked at from an Indian point of view? The campaign would end victoriously, and the Indian troops, flushed with victory, and proud of having fought side by side with English soldiers on equal terms—they might even have been complimented by the British nation, and thanked by that House— 368 having done this, they would return to India to find themselves placed under a badge of servitude and denied the privilege of having officers of their own race and creed to lead them. Would not that spread far and wide over India a sense of injustice dangerous to our rule? Once more, take the military expenditure of India and the taxation which it necessitated. The House had already been told, and, no doubt, would be told again, boastingly, that the policy of the Government would be supported by a large majority of hon. Members; but he wished to take this opportunity of giving Notice that on the Indian Budget he would move a Resolution which would be something in the following terms:—That, it having been decided that the Army of India is so large that an indefinite number of Indian troops can be spared to aid England in a European contest, this House is of opinion that the Indian military expenditure is excessive; that India has to maintain more troops than is necessary for her own defence; that the expenditure, consequently, ought to be reduced, and various taxes repealed which now prove burdensome to the Indian people.He intended to press that Resolution to a division. [Ministerial cheers.] He did not intend to shirk a division, and he should speak upon the Motion in distinct words which, he thought, would be understood in India, unless, under the gagging Press Law recently introduced, they were charged with sedition and suppressed. He was not attempting to enter into Constitutional Law, nor did he intend to say much about Prerogative. He was not going to define strictly the limits of Prerogative; but every tyro knew that there were Prerogatives of the Crown which, though they legally existed, could not for a moment be used, and which were only allowed to continue, because no Minister was rash or unwise enough to disturb the long repose wherein they had slumbered. Hitherto, the people of England had believed that no Minister would be rash or reckless enough to disturb that principle, which was regarded as one of our most cherished traditions, that Parliament should keep a direct control over the strength of the standing Army. That control had now been destroyed, and the voting of a certain number of men in the Mutiny Bill would henceforth become an idle farce, because an hour after it was passed, the Government could add indefinitely to the strength of the English 369 Army in Europe, and indirectly could more than double the strength of the standing Army employed in England. The essence of the Mutiny Bill had been destroyed, and it would be an idle farce to waste a single moment next Session in discussing it. He believed that, a month ago, the great majority of the English people had supposed that there was no more chance of the Prerogative of the Crown being used to destroy the control of Parliament over the standing Army than there was of its being used to veto a Bill which had been passed by a vast majority in both Houses of Parliament. The Government maintained that they could exercise this Prerogative legally. He believed it was an illegal act; but, even if it were a legal act, it must raise a grave question, on which he would await with confidence the decision of the country. He and his Friends would put it to the country, for they would not let the subject drop. They knew they could not defeat the Government now, but they were protesting against what the Government had done. They would continue to protest against it, on every opportunity, to the people of England, and whenever the opportunity came—and he, for one, said the sooner the better—they would put to the English people this broad and intelligible question—"Is it your wish that the control which Parliament has exercised in the past over the strength of the English Army shall be continued, or do you desire that the control which your forefathers struggled for should, by the exercise of a dominant Prerogative, be virtually taken away from the House of Commons?"
§ THE ATTORNEY GENEEAL (Sir JOHN HOLKER)
said, that the hon. Member for Hackney (Mr. Fawcett), who had just concluded what was a very eloquent speech, had complained somewhat bitterly of the narrow and technical "trough" to which that question was confined. Perhaps the hon. Gentleman did right in making that complaint; but, if so, he (the Attorney General) thought the House would agree with him that the complaint ought to have been directed against the noble Lord the Member for the Radnor Boroughs (the Marquess of Hartington), and not against Her Majesty's Government; because he did not know who was to blame for the question being confined 370 in a narrow and technical "trough," except the noble Lord, who was the originator of the Motion. It could not be objected, however, that the hon. Member for Hackney had confined his remarks to the narrow and technical "trough," for he had diverged from it, and embarked upon the discussion of a variety of questions, which certainly had nothing in the world to do with the issue before the House, but which the Government would be prepared to answer when the proper time arose. For his own part, he (the Attorney General) did not say that he had any particular objection to the hon. Gentleman taking that course; only he thought it would be more convenient if the House were to enter into the consideration which the hon. Gentleman had raised, that the House should have had some Notice of these questions. He entertained no doubt that Her Majesty's Ministers would be quite willing to embark on the question as to whether there was any emergency which justified the removal of the Indian troops from India to Malta. He had no doubt that, on a proper occasion, the Government would be quite willing to enter into the question as to whether they had pursued the course which they ought to have pursued; and, also, into the question whether the expenditure out of the Revenues of India could be justified or not. They would like wise, he daresay, enter upon the question, when they were asked to do so, whether the employment of Indian troops in Europe was an advantageous and a politic proceeding. All these points were interesting in themselves, but they had nothing to do with the Motion of the noble Lord the Leader of the Opposition. That Motion raised a grave Constitutional question, and however reluctant the House might be to deal with a Constitutional question, yet as the question had been raised, it was incumbent on those against whom the Motion was directed to deal with it as far as they were able. The proposition of the noble Lord was a very simple one; it was a very abstract one; and it had a very academical and forensic air about it. It was more forensic than it was academical. He could trace in it the hand—or hands, he was going to say—of a learned Constitutional lawyer. But that phrase would hardly suit his purpose, because he did not think that this was a Constitutional 371 Motion. But he could trace the hand in it of a legal Parliamentary practitioner. The Motion was very skilfully and astutely framed. It was the Motion of the noble Lord; but its language, and the ideas which that language conveyed, were the language and ideas of the legal advisers of the noble Lord. It was framed like a legal document. It recited the substance of the Bill of Rights and of the Mutiny Act, and the only objection one had to it was that it did not recite correctly. Those who had framed the Motion said that it recited the legal effect of those documents. Anybody reading the Motion, who was not particularly conversant with the Bill of Rights or with the Mutiny Act, would suppose that there was an exact statement in it of the substance of the Bill of Rights and the substance of the Mutiny Act; but, when he came to consult the Bill of Rights and the Mutiny Act, he would find that he was very much mistaken. Lawyers, in the good old times of subtle astute pleading, when they framed an indictment against a man, for example, who had committed an offence in Timbuctoo, and they wanted to give jurisdiction here, said, the offence was committed in Timbuctoo, to wit, in the city of Westminster, in the county of Middlesex; and he wondered his hon. and learned Friend who assisted the noble Lord in the framing of the Motion did not state that it was against the Constitution, and so on, for the Crown, in a time of peace, and without the consent of Parliament, within any part of the United Kingdom.—that was to say, within any portion of the Dominions of the Crown—to do so-and-so; because the whole question which arose upon this part of the case rested upon this—whether or not the Bill of Rights and the Mutiny Act applied not only to the United Kingdom, but to the other Dominions of the Crown? The Motion of the noble Lord contained an abstract proposition, and he (the Attorney General) supposed it was intended to cover the particular case of the removal of Indian troops from India to Malta, and to assert that, in some way or other, that proceeding was illegal. But he thought the House, upon the consideration of the question, would come to the conclusion that the design of the Motion had not been accomplished, and could not be accomplished, 372 because the proposition which the Motion enunciated was altogether and radically unsound. If that was the conclusion at which the House arrived, he did not suppose anybody would be able to go into the Lobby to support the noble Lord's proposition. But as he had said the proposition was unsound, it was incumbent on him to make some effort, even at the expense of tiring the House by a legal discussion, to demonstrate the truth and justice of that which he had advanced. In considering the proposition which was contained in this Motion, it was important to bear in mind what were the Prerogatives of the Crown which were now the subject of discussion before the Bill of Rights and the Mutiny Act passed. Now, before the Bill of Rights passed into law, he did not think any hon. Gentleman would be willing to dispute that it was the Prerogative of the Crown to declare war and to make peace, or would dispute that a recital which was contained in an Act of Parliament still on the Statute Book was perfectly true—namely, that—Within the realms and dominions of the Crown the sole and supreme government and command of the militia, and of all forces by sea and by land, and of all forts and places of strength, is, and by the laws of England was, the undoubted right of the Crown, and both or either House of Parliament cannot and ought not to pretend to the same.He did not think anyone would deny that, at all events, before the Bill of Rights passed into law, it was the Prerogative of the Crown not only to command and control the Forces of the Realm, but also, when necessary, to raise and maintain those Forces. Before that Bill passed into law, the Crown used to gather together the Forces necessary to repel invasion or to wage war against other countries. It had also within its Prerogative the enrolment of the Militia Force, and the appointment of the Lord Lieutenant, who in each county was the Constitutional Commander of that Force, and considerable Regular Forces had been raised and kept up by the Crown before the Bill of Rights became law. [Mr. GLADSTONE: Hear, hear!] The right hon. Gentleman the Member for Greenwich cheered that sentiment and that view of the case, and, from the tone of the right hon. Gentleman, he (the Attorney General) was inclined to believe that his cheer 373 was somewhat sarcastic. The right hon. Gentleman would of course be able in his turn to explain his own view of the matter, and he durst say the right hon. Gentleman's explanation would entirely overwhelm him; but, at all events, he had a right to entertain, his own view. It had been said, and probably would be said again, that the Bill of Eights contained not a new enactment with reference to the law, but simply a declaration of what the law really was. Well, that might be so, but he himself did not think it was. He did not know that that was very important, but he wanted the House to have a just notion of the question they were dealing with. It might be important; but he did not think so, for two reasons, which he would give—first, because if it was the common law which was declared by the Bill of Rights, he should not have expected in the reign of Charles the First, when the Bill of Rights was presented, when there was such a fervour with regard to outraged liberties, that the only complaint with respect to the Army assembled at that time would have been, as it was, that it was dispersed into the various counties in the Kingdom and quartered on the inhabitants of those counties, much to the vexation and grievance of the inhabitants thereof. That was the complaint which was made in the Petition for the Bill of Rights, and there was not a syllable there that it was not the Prerogative of the Crown to maintain these troops. He found a passage on the subject in a work of one of the most eminent and celebrated Constitutional lawyers—he meant Mr. Hallam. He said, with reference to this matter—The most questionable proposition, though at the same time one of the most important, was that which assorts the illegality of a standing army in times of peace unless with the consent of Parliament. It seems difficult to perceive in what respect this infringed on any man's private right or by what reason (for no statute could be pretended) the King was debarred from enlisting soldiers by voluntary contract for the defence of his dominions, especially after an express law had declared the sole power over the militia, without giving any definition of that word, to reside in the Crown."—[Constitutional History, c. xv.]Those who had ironically cheered him when he said that the declaration of the Bill of Rights was not a correct declaration of the common law would perhaps 374 ironically cheer Mr. Hallam's enunciation of the same proposition. But, however that might be, they must take the Bill of Rights as it stood, and he was as willing as any man to approve that celebrated Statute. He did not care, however, whether the common law was stated in the Bill of Rights or not. The question for the House to consider was, what was the limit to the Crown's Prerogative which was imposed by the Bill of Rights? He knew that some hon. Gentlemen had, so to speak, thrown overboard the Bill of Rights, finding, on inspection, that it did not suit them. They were in love with it when the noble Lord's Resolution was framed, but they had become disillusionized; and they also found that the Mutiny Act did not support them, nor suit the spirit of the proposition that had been laid down. But as the noble Lord's Resolution went forth to the country professedly based on those notable Acts, it was incumbent on him to consider that question. Now, the question was, what limit on the Crown's Prerogative with respect to the military Forces was imposed by the Bill of Rights? and he would presently come to the limit proposed by the Mutiny Act. The Bill of Rights said this—that the raising and keeping of a standing Army within the Kingdom in time of peace, unless it were with the consent of Parliament, was against law. That enactment was quite plain and clear. It was passed at a time when the Kingdom consisted of the Kingdom of England only. It was confined, he asserted, in its operation to the Kingdom. That was the natural meaning of the word that was used, and there was nothing in the circumstances of the case which should induce anybody to strain that natural meaning, to make it read otherwise. Moreover, the mischief which that Act of Parliament was intended to meet and grapple with was met and grappled with by the terms used in the Statute itself, for, undoubtedly, one of the great objects which the Legislature had in view when the Bill of Rights came before it was to prevent the Houses of Parliament and the Members who had their homes in this country from being overawed and coerced by the presence of a standing Army. Such a consideration, however, had no reference to the Dominions of the Crown beyond the Kingdom. Therefore it was that that 375 provision was inserted in the Act, and that it was confined to the Kingdom. If anybody had any doubt as to that, let him consider that at the time when that Statute was passed there was a standing Army in a Dependency of the Crown—namely, in Ireland—which was not touched by the Bill of Rights and was not limited in any way, and that there were also Forces of the Crown in other Dependencies and Colonies of the Kingdom with which the Bill of Rights did not in the slightest degree interfere. There was a considerable standing Army in Ireland, and it was not until many years after the Bill was passed into law, that any Act was passed which interfered with it. But, if they wanted any further confirmation of his proposition that the Bill of Rights was confined to the Kingdom, they would find it in the fact that after the Kingdom became enlarged, after the Union with Scotland and with Ireland, after the constitution of one Parliament for the United Kingdom of Great Britain and Ireland, they had in the Mutiny Act, passed year by year, this declaration in the shape of a recital of what the law was—namely, that for the Crown to maintain an Army in the United Kingdom of Great Britain and Ireland in time of peace without the consent of Parliament was against the law. That they had before them in the Bill of Rights. Therefore, they had before them the Bill of Rights as interpreted by the Legislature in every succeeding year since the formation, of the Constitution of Great Britain and Ireland; they had the Mutiny Bill, passed annually by the most eminent statesmen and lawyers whom this country could produce, and stating, year by year, that that law was applicable only to the state of things in the United Kingdom of Great Britain and Ireland. Then, what more was to be required? If the Bill of Rights and the Mutiny Act applied merely to the United Kingdom of Great Britain and Ireland, and they were intended to remedy the evils which existed and which were apprehended—evils which had reference simply to the state of things in Great Britain and Ireland—what became of the contention that the proposition of the noble Lord was one which the House could accept? If what he had pointed out were correctly pointed out—if his enunciation of the 376 law were right—the proposition of the noble Lord must necessarily fall to the ground, because; so far as it extended to the Dominions of the Crown outside of the Kingdom, it was utterly unsupported and fallacious. Let him not be misunderstood. While endeavouring to explain what the Prerogative of the Crown was, he would not be supposed to deny that Parliament had anything to do with the Forces maintained by the Crown—no one on that side—certainly no one on the Government benches—had ever contended for anything of that kind. The Chancellor of the Exchequer and the Secretary for the Colonies, whenever they had spoken on the question, had always confessed that the power Parliament possessed over the Forces which might be raised by Her Majesty was a power of very great importance, and one which, in fact, gave to Parliament almost a complete check and control; for no one denied that if Forces were raised—he cared not where—in the Dominions of the Crown, and if they had to be paid out of the Revenues of this Kingdom, Parliament had a complete check, because it might refuse the requisite Supplies. The Chancellor of the Exchequer had from beginning to end said—"We contend that we have a right to move these Forces from India to Malta; but we do not contend that, after they have arrived at Malta, and when they have to be maintained there at the expense of the Revenues of this country, it will be in the power of the Crown or of Ministers to keep and maintain them there. But what we say is, that if they are to remain there at the cost of this country, we must come to Parliament with the fullest possible explanations, and ask for the requisite grant of money for them." He had no doubt that those who knew more about the policy of that measure than he could do would have no difficulty in satisfying the House at the proper time that there was an urgent necessity for ordering those troops to be brought from India to Malta without a previous communication to Parliament. That, however, was not the question they were now called on to discuss, but they had before them an abstract proposition. Allusion had been made in more than one speech to something that took place in the last century. In their laudable endeavours to assist the Government in 377 carrying out the wise and prudent policy upon which they had determined, the noble Lord and those who followed him in supporting his Resolution, had gone far and wide to see if they could not discover precedents which would justify their proposition; and, amongst the precedents which they had pointed out to justify to some extent that for which they contended, was a discussion which took place in the year 1775, when certain Hanoverian troops were sent to Gibraltar and Minorca to garrison the fortifications of those places. Port Mahon was one of the places they were sent to. Now, in the discussion of that subject, if they might rely on the reports—but he did not think it would be very wise to rely implicitly on the reports of the debates in that House at that time—a good many, as he thought, wild and fantastical notions were expressed with reference to the Bill of Rights on the one side and the other. But the real discussion turned upon this—here were foreign troops, owing allegiance to a foreign Sovereign—because it was not the King of England, but the Elector of Hanover, who had the control of these troops—here were foreign troops, and a foreign Sovereign importing these foreign troops into fortresses of this Kingdom. Objection was made to this proceeding, and, in his humble opinion, it was rightly made on several grounds. In the first place, if they took, not the Bill of Rights, but the Act of Settlement, that Act provided, in short, that no foreigner, no person who was not a native-born subject of the Crown, should be entrusted with any military or civil post; and it was perfectly clear that, if those troops were sent to Gibraltar and Port Mahon, those in command of them would be entrusted with military offices of the greatest possible importance, and that the entrusting them with these offices was an infringement of the Act of Settlement, though in no shape or respect an infringement of the Bill of Rights. Again, those troops owed no allegiance to the Sovereign of England; the allegiance which they owed was to the Elector of Hanover. Further, they were sent to Gibraltar and Minorca while under no Mutiny Law which emanated from the Legislature of this country. At all events, so far as this country was concerned, they were under no Mutiny Law 378 at all, and they might, if they had so chosen—though, as matter of fact, we knew their conduct was irreproachable—have surrendered the fortress of Gibraltar to the enemy, and not a single man of them could have been tried under military law, or any other law of this country. For these reasons, therefore, was it not abundantly clear that, without the slightest reference to the Bill of Rights, or the Mutiny Act, or any other Act but the Act of Settlement, it was wise for those eminent statesmen who objected to the proceedings in 1775 to make their objections, and that those objections ought to have been supported? He had said that there was a Bill of Indemnity introduced, and that Bill was carried with one single exception, although it was not ultimately accepted. He did not wish to examine minutely into what was done, or to say that because it was done in Parliament, therefore it was right—for that was not his opinion upon all occasions, and especially so in the circumstances of the case he was alluding to. But he did say this—that, as far as he could form an opinion on the subject, those who were at the helm of affairs would have done well to have accepted, or introduced themselves, a Bill of Indemnity to cure the irregularity. But what, in the name of fortune, had that incident of 1775 to do with the question which they were discussing? The Commanders of these Indian troops were not aliens who would be put in positions of trust under the Act of Settlement; they were not persons who were not natural-born subjects of Her Majesty. Indian troops were not foreigners; for though their colour was slightly deeper, he supposed no one in that House, be he ever so great a Constitutional lawyer, would deny that the Indian troops were subjects of Her Majesty. What in the world, then, had they to do with the incident of 1775? For what reason was it lugged into this discussion, except that hon. Gentlemen who wanted to support the proposition of the noble Marquess found that, unless they lugged something into the discussion beyond the Bill of Rights and the Mutiny Act, with which they started, they could not possibly make anything of it? It seemed to him that no great light was thrown on the matter by discussing what was done in 1775, or that the House would 379 derive any material advantage in considering what was done in 1794, when, he believed, certain troops—Austrians or Hessians, were landed in the Isle of Wight. Undoubtedly, certain objections also were taken to that step; but it was settled that there was a case of great emergency, and what possible analogy they could draw, on one side or the other, from the fact of those troops being introduced into the island, or what possible light they could get from the discussions when the matter was brought upon the carpet, he was, for his part, unable to find out. It seemed to him that they would derive much greater benefit from dealing with this question upon the principle which was involved, and from considering the consequences which would follow, supposing the proposition of the noble Lord was a right one. With respect to the principle, he (the Attorney General) had shown that the Bill of Rights did not extend beyond the Kingdom, that the English Mutiny Act did not extend beyond the United Kingdom, and that the reasons for these enactments were reasons confined within the area of the Kingdom in one case, and of the United Kingdom in the other. Now, he would examine for a moment the consequences which might ensue if the proposition of the noble Lord were accepted. If the proposition of the noble Lord were accepted, what would happen to the inhabitants of the Colonies and Dependencies of the Crown, for had they not been committing a most gross and flagrant infringement of the Bill of Rights and of the Constitutional law of this country? [Sir HENRY JAMES dissented.] His hon. and learned Friend the Member for Taunton shook his head, and might state presently what he had to say to the contrary; but, having advanced his proposition, he (the Attorney General) would try now to establish it. In the Colonies and Dependencies of this country there were Forces of many descriptions, constituting the Militia and Volunteers, and in several there were Regular Standing Forces. [The Marquess of HARTINGTON: How many?] "How many?" said the noble Lord. He did not care if there were only a dozen. If they said they would not introduce more than seven regiments, what had the number to do with it? Hon. Gentlemen opposite said that when seven regiments were brought, 70 regiments 380 might also be brought, and, of course, it was the principle that was important in both cases. He said that if there were in the Colonies and Dependencies of the Crown—Victoria, for example—Regular Forces established at all, what did it matter whether they were 1, 100, or 200—a troop of Cavalry, a regiment of Infantry, or a battery or two of Artillery? They were there, and were raised and maintained not out of the Revenues of this country; they were maintained in the Dominions of Her Majesty, they were under the control and command of Her Majesty, and were raised on Her Majesty's behalf. Would hon. Gentlemen deny that it was so? It might be that there were not many of these troops besides the Militia; but there were great bodies of Militia, and he would not pause to dwell on that point, because it might be fairly said, by way of distinction, that the Militia did not come under the category of a standing Army. He should have thought that when they were called out they did; but it was no use labouring that point, because it was possible something might be said against it, and it was no use labouring a point of that kind when he had so many against which nothing could be said. Could anyone deny that if the Government of the Dominion of Canada liked, it could raise a standing Army? [Mr. GLADSTONE: Hear, hear!] He was glad the right hon. Member for Greenwich said "Hear, hear!" and that the hon. and learned Member for Oxford (Sir William Harcourt) endorsed it by a pleasing smile. Under the British North America Act of 1857, the Dominion Government had power to raise a force of Militia—or, in the words of the Act, "any Force for the Military or Naval Service." Now, for anything they knew, next year, or the year after, or in a few years, the Legislature of the Dominion might think proper to raise Forces for the protection of the Dominion. He did not think anybody would object; at all events, not hon. Gentlemen on the other side, because many of them in 1862 maintained that, under the circumstances of the time, it was desirable that the Colonies should be able to raise Forces for their own defence. Well, then, supposing they took that step, would anybody contend that those Forces, which would not be within the 381 Realm, but which would be raised on behalf of Her Majesty, would be under the control of Parliament, or that they would be improperly raised without the consent of the Imperial Parliament? He knew what would be urged against this by his hon. Friends on the other side. They would say that if the Dominion raised this Army, it would be raised with the consent of Parliament. Hon. Members might say that it would be raised under an Act of the Dominion authorized by an Act of the Imperial Parliament. Hon. Members opposite might say so, and if so, let them have the benefit of it; but if they did say so, he should like to know under what authority the Native troops in India were raised? Were they raised simply by a law of the Governor General in Council in India? No; they were raised under a law of the Governor General in Council in India, which was sanctioned by, and which was enacted under, the authority of the Imperial Legislature. Therefore, the Force which might be raised in Canada and the Force in India would stand exactly upon the same footing; and if it were said of one of those Forces that they could not be moved without the consent of the Imperial Parliament, exactly the same thing must be said of the other also. But there was something further to indicate the extraordinary nature of the proposition advanced by hon. Members opposite. It was said that the Mutiny Act specified the number of the Forces that might be raised in Her Majesty's Dominions, and that they amounted, he thought, to some 135,000 men—he forgot the exact figures—exclusive of the Forces of Her Majesty that were serving in India. That was one of the expressions derived from the Mutiny Act which were so carefully inserted in the Motion of the noble Lord. Well, but those Forces of Her Majesty serving in India comprised not only the Native Indian troops, but the English regiments of the Line which happened to be in India, and which, happening to be in India, were not maintained out of the Revenues of this country, but out of those of India. So there would be this curious state of things—that if, for example, during war, an invasion of one of their Colonies was threatened—it might be an Australian Colony—and if, before war actually broke out, because some 382 distinction appeared to be drawn between a state of peace and a state of war as it affected that question; and, therefore, for the sake of illustration, he would take a time of peace—and if the Colony, for the protection of themselves and of the Imperial interests, were desirous to have some assistance, and it was resolved to send to them some of the regiments of the Line which happened to be stationed in India, if the contention of hon. Members opposite were correct, it would, notwithstanding that the Colony was willing to pay for their maintenance, be an illegal act on the part of the Crown to send those regiments to them. And thus—for it was the conclusion to which they were driven—rather than Her Majesty should have the power of sending a few of the English regiments from India to the assistance of their Colonies in time of threatened invasion, though before the outbreak of war, hon. Members opposite would raise this wonderful Constitutional objection, and say—"No, you shall not send them," and would thus do their best to prevent that timely assistance being furnished. He thought that these consequences of the contention into which the noble Lord and those who followed him must necessarily be driven were of themselves almost sufficient to prove the absurdity of the proposition which they advanced. He knew that the hon. and learned Member for Oxford had disregarded consequences altogether. The hon. and learned Gentleman had made a speech about "the great Constitutional principle," whatever that might mean. The hon. and learned Gentlemen began by making a speech in support of this Resolution, which was founded upon the Bill of Rights, but very shortly he found that the Bill of Rights did not suit his purpose. The hon. and learned Gentleman had taken up the Bill of Rights as a battle-axe, but its handle broke in his hand; then he took up the truncheon of the Mutiny Act, and even that had slipped from his grasp, for he could make nothing of it; and then he bethought himself of "the great constitutional principle which underlies the whole state of our society," which somehow or another he sought to fish up in support of this Resolution. This last weapon, however, was like the masque-rader's weapon—it consisted of nothing but an empty bladder tied at the end 383 of a stick. Another point, however, had been raised, and a good deal had been made of it. It was the one which rested upon the Act for the Government of India, which was passed in 1858. He understood, in the course of the debate, that it was asserted there was something in that Act which rendered this movement of the Native Indian troops from India to Malta illegal. His position, however, was this—he contended that Her Majesty had the control and management of the Forces in India; that they were Her Forces; and that it was Her Prerogative, for the good of the Empire—and he did not suppose that Her Majesty would use them for any other purpose—to move those Forces from India, where they were, to Malta, or to anywhere else, leaving it to the Imperial Parliament, when they got there, subsequently to sanction the step which had been taken by voting the necessary Supplies. When this Act for the Government of India was rightly considered, it would be found that, instead of condemning his contention, it altogether blessed it. That Act was passed in 1858, and when it was before the Committee of that House, the right hon. Member for Greenwich—who, of course, was always particularly cautious lest the Prerogative of the Crown should be encroached upon—introduced a clause which was directed, to a certain extent, against the Prerogative of the Crown. That clause was as follows:—That, except for repelling actual invasion, or under other sudden and urgent necessity, Her Majesty's Forces in the East Indies shall not be employed in any Military operation beyond the external frontier of Her Majesty's Indian Possessions without the consent of Parliament to the purposes thereof."—[3 Hansard, cli. 1067.]The purport of that clause throughout was this—that, although it had been legal theretofore to employ Her Majesty's troops in India anywhere else, for the future those Forces should not be employed outside the limits of our Indian Empire without the consent of Parliament. Had that clause been passed into law, hon. Members opposite would have been fully justified in contending that it was illegal to move the Native Indian troops from India to Malta. The right hon. Member for Greenwich had introduced that clause with a speech which was very convincing, because the 384 clause was carried by a considerable majority. He would not weary the House by referring in detail to what was said upon that occasion, but would content himself with saying that many of the then associates of the right hon. Gentleman—such as Lord Palmerston, Earl Granville, Lord John Russell, and the late Mr. Wilson—protested against that clause on the ground that it was an undue restriction and fetter which the right hon. Gentleman was placing upon the Prerogative of the Crown. Cogent arguments were urged against the proposal, but they did not convince the right hon. Gentleman, who persisted and carried his clause. But when its effect came to be better known, and when the Bill went up to the House of Lords, the House of Lords would not have the clause at any price. The objections which had been raised against it in that House were reiterated in the House of Lords, and the late Lord Derby, in order to get rid of it, introduced and carried the clause which now stood in the Act, and which ran as follows:—Except for preventing or repelling actual invasion of Her Majesty's Indian Possessions, or under other sudden and urgent necessity, the Revenues of India shall not, without the consent of Parliament, be applicable to defray the expenses of any Military operations carried on beyond the external frontiers of such Possession by Her Majesty's Forces charged upon such Revenues.["Hear, hear!"] He was delighted to find that hon. Members opposite appreciated so nicely the distinction between the two clauses. There was nothing in the clause which prevented Her Majesty from exercising Her Prerogative and bringing these troops from India to Malta—in fact, it was impliedly conceded that she might do so; but there was something in the clause, and properly so, to prevent the operation which might be carried on, not exclusively for the benefit of India, being saddled on the Indian Revenue. They were dealing with a nice, he might say a subtle, Constitutional question, and Her Majesty's Government were not going to muddle up two things so entirely distinct, and to say that because the clause prevented the expenses of removing the Native Indian Troops from India to Malta being saddled upon the Revenues of India, therefore Her Majesty had no power to move those troops to such places as She 385 might think it expedient they should be sent to. No one had ever contended, so far as he was aware, that the expense of moving these troops should be saddled upon the Indian revenues. Boldly and candidly he asserted that that expense would have to come out of the Revenues of this country, and that Parliament would have to be asked for the necessary Supplies. Doubtless, difficulties might arise in apportioning the cost of the troops; but he was informed that the balance of the account between India and this country was generally in favour of this country, and, therefore, the only result of our defraying these charges would be that the balance in our favour would be reduced by a small amount. Precedents had been cited by hon. Members opposite, and he would not touch upon those precedents further than to say that there were numbers of instances in which the Native Indian troops had been moved, and had been stationed, not in foreign parts, but on the frontiers of the Territories of the Crown, and that in some cases in time of peace. The hon. and learned Member for Oxford had alluded to the case where an outbreak of the Maories in New Zealand had been apprehended and application had been made to the Home Government for some Indian troops to assist the Colonial Forces in putting it down. The then Government promised to send some of the Native Indian regiments to assist the inhabitants of the Colony to suppress the threatened outbreak. After the Government had promised that this should be done, however, it was said that they found there was an unconstitutional pitfall in which they might be plunged. The consequence was, they immediately revoked their order, but to this extent only—that, instead of Native troops, they sent to the assistance of the Colonists in New Zealand three or four English regiments of the Line which happened at the time to be stationed in India. What was the difference in a Constitutional point of view between these two courses for he could not see any. If it were unconstitutional to send Native troops to assist the Colonists in New Zealand, was it not unconstitutional to send troops of the Line? Were they not just as much "Forces serving within Her Majesty's Indian Possessions," paid by the Revenues of India, and not paid a single sixpence out of the Revenues of this country? 386 That, he thought, disposed of the precedent which was sought to be set up. A good deal had been said about a course of the kind which had been taken by the Government, being taken in time of war. What in the world did it matter whether Her Majesty removed Her troops in time of war or of peace? ["Oh, oh!"] Why, it was the same thing, and for this reason—that wonderful idea of peace was derived from the Mutiny Act and the Bill of Rights. Because it was said, under those statutes, that certain things might not be done in the United Kingdom in time of peace, it was therefore contended that the same thing might not be done out of the United Kingdom. With regard to this last question, neither the Mutiny Act, the Bill of Rights, the Act for the Government of India, nor the wonderful Constitutional principles which had been pumped up by his hon. and learned Friend the Member for Oxford, would avail anything. If Her Majesty could move Her troops where She pleased in time of war, he could not see that any Constitutional principle was violated by Her moving them in time of peace. The Parliament in either case would be there to vote all the necessary Supplies alike for the cost of moving the troops and of maintaining them in the place or places to which they had been moved. But, supposing the interpretation to which he had referred—but could not admit—were true, would anyone say that Europe was in a state of perfect peace? It might be, and was, that the Continent was not in a state of war; but it might be likened to a beautiful Summer's day, when threatening clouds suddenly darkened the sky, and no drops of rain fell or thunder rolled or lightning flashed—a sudden change might occur which would very speedily develop and bring, almost immediately, rain, and lightning, and thunder where a few minutes before all had been peace and brightness. Let them look at the war that had been waged and had only just ceased; look at the plains of Europe glistening with a wilderness of bayonets; consider the blood which had been shed; look at the preparations for war heard of on all sides; and then ask themselves—was that a time of profound peace? He did not say it was war, but he did say that the Government—if any Government could do so constitutionally—was 387 justified in resorting to every precaution against war. He should say no more. That was not exactly the time in which such a Motion as that of the noble Lord should be introduced. The people were earnestly waiting for the issue of the negotiations that were now going on; they were on the tip-toe of expectation; they were anxious to ascertain whether the firm and determined attitude which the Government had assumed would be productive of benefit, and would secure the interests of this country; and they were not particularly interested in this quibbling on Constitutional rights.
Mr. Speaker, my noble Friend, when he introduced the Motion before the House, stated that he intended to confine himself altogether to the Constitutional and legal question which it appeared to raise, and added that he would avoid, a discussion on questions of policy. The Attorney General made the same promise; but the difference was that, while my noble Friend adhered to his promise with the utmost strictness till the conclusion of his speech, on the other hand, the Attorney General, who has given us a very valuable and useful exposition of his views upon the legal question, could not refrain in his peroration from adverting to the question of policy, and pronouncing a warm eulogium upon the proceedings of Her Majesty's Government. Well, Sir, I intend to follow, as far as I am able, the example of my noble Friend who kept to his promise, and not that of the Attorney General, who a little departed from his; but I must say one word upon the subject, because, among the many rather notable facts of the speech of the right hon. Gentleman the Colonial Secretary last night, which stated the case of the Government, one was his complaint that we had evaded or avoided any declaration of policy upon the general question. Well, I will not be led into a statement which will occupy even so much as two minutes; but I must say that that charge of the Colonial Secretary appears to me to be most unjust. Everyone of course, looks at these charges as they affect himself. I may, indeed, be liable to the accusation of having gone much beyond the ordinary duty and function of a Member in Opposition in suggesting a policy to the Government; but I own it appears to me that the contrary accusation, so far as it 388 is levelled against me, is altogether absurd. I now tell Her Majesty's Government, that if they will only pursue European objects in concert with Europe, and not by a policy of isolation; if they will only allow Europe to determine upon what terms, and in what method, she will go into Congress; if they will only pursue diplomatic aims by diplomatic means, and refrain from warlike menaces until diplomatic means have failed and just cause for war has appeared—there is a policy, a policy opposed to theirs upon every point, and a policy which many, certainly on this side of the House, have been forward to recommend during all the recent stages of the present discussion. The only other object which remains is the most important of all, and I cannot abandon the hope that it is one in which we may be found at one with Her Majesty's Government. If so, it will be a great comfort, and a great reparation for all that has taken place at former periods—namely, that when once the influence of this country comes to be used in the Councils of Europe for the settlement of the East, it may be used for the purpose of consolidating, confirming, and extending, and not for the purpose of narrowing or impairing the liberties of the subject-races under Turkish rule. Another word I am compelled to say, because we had a gibe from the Attorney General, and a comment from my hon. Friend the Member for Hackney (Mr. Fawcett) of a very explicit character, which it is impossible to pass by in silence. It appears that we are not the parties authorized to object to what we think a violent extension of the Prerogative of the Crown, on account of what is called the Purchase Warrant. We were ready to defend that Warrant at the time when it was discussed, and it is inconvenient to revive these old controversies—[Laughter]—when they cannot be discussed. If hon. Gentlemen wished me to enter upon a discussion of this question, I should be prepared to go on with it; but as they offer me no encouragement, I will only say, and I challenge contradiction, that the Warrant was devised and passed for the purpose of putting a stop to a gross, habitual, and undoubted violation of the law by the highest authorities. Hon. Members will, perhaps, reflect and inquire a little about the Purchase Warrant, before they welcome a revival of 389 that question. I am extremely sorry the Attorney General has left his place, because it will be my duty to object, as well as I can, to any fundamental propositions that he has laid down on this question as partly a legal and partly a Constitutional question as distinct from legal. It will be my duty to impugn the conduct, not of the Chancellor of the Exchequer in particular—even if I refer to his name, I mean to speak of him simply as the organ of the Government—it will be my duty to impugn the conduct of the Government in this matter distinctly upon Constitutional and legal grounds. We have had a convenient definition, produced from Mr. Hallam, of the word "unconstitutional." As applied to an act, we are told that the act must be novel, great, and must also have a tendency to the subversion of the law. In that sense of the word, I contend that there are two proceedings of the Government, quite independently of the legal aspect of the question and of the question of policy, which are strictly, unconstitutional. Her Majesty's Government incurred a charge for those Indian troops at the very time they were proposing and carrying the financial measures of the year, without providing any Ways and Means for meeting that charge. Now, Sir, if there is one thing more than another that will come within the definition of Mr. Hallam, it is a proceeding of that kind. Nothing is more novel; few things can better deserve the title of great; and nothing goes more directly towards sapping the fundamental powers of this House, than such a proceeding as I have described. It is the undoubted and paramount duty of Her Majesty's Government, at the time they submit the financial measures of the year, to make known to Parliament the whole of the Charge which they expect will have to be met within the year, and to propose a provision of Ways and Means to meet the entire Charge. Now, Sir, I am not making a charge against the Chancellor of the Exchequer—which, I believe, has been made by some—that he did not explain to us the nature of the Government measure at the time of his Budget. That is a totally different matter. If the measure were objectionable upon other grounds, and if Her Majesty's Government thought the revelation of it at that particular moment inexpedient, 390 they were perfectly justified in keeping it secret; but, though justified in keeping it secret, they were not on that account one whit the less bound to make pecuniary provision for that measure. ["No!"] Hon. Gentlemen say they are not. Then, do those hon. Gentleman deny it? because, if so, let them not deny it by what I may call these irresponsible expressions of dissent, but in speech. Let them tell me that they think the Finance Minister is justified in coming with a Budget to this House, detailing to the House what he believes to be the financial Expenditure of the year, calling upon the House to provide Ways and Means to meet that Expenditure, and at the same time keeping back items of expenditure which he believes will be incurred, but which he is not to state to the House of Commons. ["No, no!"] No!—you say he is not justified. Then, I entirely agree with you; and it will remain for the Chancellor of the Exchequer to explain how and why it was, or whether it was—for I shall be very glad to find that the accusation which I make is not founded in fact—it will be for him, I say, to explain whether it was; and, if so, how and why it was, that, knowing that a charge might be incurred during the year for the Indian Forces, he did not include in the Budget what he thought was a sufficient sum to meet the probable amount of that charge? What I am stating is not, I think, unreasonable—[The CHANCELLOR of the EXCHEQUER: Hear, hear!]—because my right hon. Friend has told us that the first decision of Her Majesty's Government was taken on the 27th of March, and that the Order was actually sent on the 4th of April. [The CHANCELLOR of the EXCHEQUER: The 12th. On the 4th the Budget was submitted.] Well, on the 12th, Her Majesty's Government were fully aware of this charge; and yet they proceeded with the Budget as they had framed it before they were aware of this charge, and invited the House of Commons to accede to it. We did accede to it, and we voted different taxes on the invitation of the Chancellor of the Exchequer, and that in the full belief—which we were justified in entertaining—that we were making adequate provision for the entire Expenditure of the year, so far as it was foreseen by Her Majesty's Government. Now, Sir, if the statement can be shaken 391 in its main particulars, I, for one, shall be extremely glad. If it cannot, then I call it an instance of highly unconstitutional conduct. Well, Sir, in the second place, I think it is unconstitutional to deal, as the Government has done—and here there is no doubt at all about the facts—with the power of the House of Commons to vote money. They have placed us under the virtual necessity of meeting an expenditure which they have incurred without our sanction or knowledge. Now, I want to know, if that be allowable, what are the limits of that doctrine? It has been said by some Member of Her Majesty's Government elsewhere, and I may be told, that a Government often gives orders for this or that expenditure in anticipation of the sanction of Parliament. Perfectly true—a fact entirely inseparable from the administration of a great country. But these orders are given for the purpose of expenditure within the ordinary precedents, the ordinary course, and the ordinary necessities of administration. They are not given for things novel; they are given for things "great;" they are not given for things tending to narrow the discretion of Parliament. Is our discretion narrowed in this instance, or is it not? Are we free, or are we not, to refuse to vote this money? You know perfectly well that it would be disgraceful to leave it as a charge upon the Revenues of India. You know this as well—that there is no other source, except the Imperial Exchequer, from which it can be met. So that, instead of giving us a real freedom, you leave us, indeed, that nominal freedom which you cannot take away, and with which it is out of your power to interfere; but you have placed us in a position in which no real discretion can be exercised by us; and this in a case where you have gone against all precedent, and where, if ever there was such a case, it was most desirable that the discretion of Parliament should be unfettered and unimpaired. Sir, it is admitted that the introduction of Native Indian troops into the warfare of this quarter of the globe, independently of the question of their being so introduced in time of peace, is a matter of great novelty, and is a proceeding involving important questions of policy in every sense and in every direction such as, perhaps, can hardly be found in any 392 other proposition that can be made. In the year 1854–5, when the Government of Lord Aberdeen thought it was necessary to ask Parliament to raise a Foreign Legion, that was a time of war; but we did nothing towards committing Parliament to the raising of that Legion without first seeking the authority of Parliament for the purpose. Surely the necessity for the siege of Sebastopol, with our reduced Army pining and perishing away from day to day, was an urgent necessity, compared with that of arraying your military demonstration in such an order as you think will best back your diplomatic arguments. But with the general and I believe the universal approval of Parliament, we felt that the introduction of foreign troops into the service of the country was an act of so grave and novel a character that it would be a high offence against the Privileges of Parliament if we were to presume in move in that direction without having first obtained its sanction. I take no merit whatever for this proceeding. I believe we should have been grossly to blame had we acted otherwise. Well, if Her Majesty's Government have taken the course they have adopted, not for the purpose of preserving the safety of the country, not to meet the exigencies of a war, but for the purpose of giving effect to their own special conceptions—that diplomacy is best backed when the bayonets are gleaming outside the door; if they have done that, then they have placed us in a condition of virtual servitude as regards the administration of this great power and privilege of voting money by a proceeding which, it appears to me, is one in the highest degree unconstitutional. Now, Sir, I come a little nearer to the Attorney General, whom I am glad to see in his place, and I begin by apologizing to him for the cheer which he so good humouredly referred to. I have always listened with respect and satisfaction to his legal arguments, and am always greatly assisted by them in my humble endeavours to comprehend the question at issue; and, therefore, it was from no want of respect that I was betrayed, along with a learned Friend near me, into that momentary utterance; but it was, I must frankly own, for my surprise, when I considered the way in which we were being led and who it was that was leading us in it. Well, Sir, I have, I think, shown 393 that the proceedings of the Government were unconstitutional; and I now come to the other point—namely, that they were strictly and properly illegal proceedings—and in two respects the first has relation to the Bill of Rights, but it is not the relation to the Bill of Rights which the Attorney General ingeniously conceived. I am sorry to find that the hon. and learned Gentleman objects so much to a Motion if he scents in it something that shows him it has been drawn by a lawyer. The Attorney General has been concerned in the highest degree to discover something astute in the manner of bringing this subject before the House; but the Attorney General entirely misconceives the relation of my noble Friend's Motion to the Bill of Rights and the Mutiny Act. He appeared to think that the Motion was founded upon nothing but the Bill of Rights and the Mutiny Act. He has not heard that statement from anyone on this side of the House. I quite agree that the Attorney General sees nothing in the matter except the Bill of Rights and the Mutiny Act. But the question is, whether he ought to see something in the matter besides the Bill of Rights and the Mutiny Act. Now, what are the doctrines that we have heard from the Attorney General to-night? He has said, if I understood him—and I will put my propositions briefly—that the Bill of Rights in that particular clause which says the raising or keeping of a standing Army within the United Kingdom in time of peace, unless it be with the consent of Parliament, is against the law; he has stated that the Bill of Rights made that law. The Attorney General has also stated that it made the law for England, and that before the Bill of Rights the law did not exist either for England or for Her Majesty's Possessions beyond the seas. Now, Sir, what I have been taught—and what I think will be contended to-night from this side of the House—is that, whatever be the authority of the Bill of Rights and the Mutiny Act, they have reference to something more venerable still—to the ancient Common Law of the land, which the Attorney General does not appear to have taken at all into his view. The Attorney General finds that there was a debate in 1775, and, I will not say astutely—for I know he objects to everything that is astute—but ingeniously, 394 and very effectively, as they say, he gets rid of that debate in 1775 by saying that a great many men on both sides of the House said many fantastic and wild things. That is the way that the Conservative Attorney General of 1878 disposes of Lord Chancellor Bathurst, Lord Camden, and the great legal luminaries of 1775. He will not deny that among the "wild and fantastic things" that they said were these—First of all, that the Bill of Rights was in this matter a strictly declaratory Act, and that while this was said by Lord Shelburne, it was said by Lord Camden and Lord Shelburne, and admitted by Lord Chancellor Bathurst, that "the Kingdom" in the Bill of Rights was to be interpreted as including the Dependencies of the Crown. But what are the two main propositions of the Attorney General? He says that the Bill of Rights did not declare the law, but made it. He also said, that it made the law for the United Kingdom, not for the Dependencies of the Crown. There is one authority which I am sure the Attorney General will admit, and not accuse of wild and fantastic things, in regard to the Bill of Rights, and that is the Bill of Rights itself. And what does the Bill of Rights say upon the first proposition of the Attorney General—that the Bill of Rights did not declare the law, but made it. The Bill of Rights says this—The said Lords Spiritual and Temporal and Commons, pursuant to their respective letters of election, being now assembled, and taking into their most serious consideration the best means for attaining the things aforesaid, do in the first place, as their ancestors in like case have usually done for the vindicating and asserting of their ancient rights and liberties, declare—They declare! And then they proceed to declare, among others, the propositions which I have already read to the House. But, says the Attorney General, it is not a declaratory Bill. He has given us a most interesting description of the powers of the Crown, as he thinks that they existed, but as the authors of the Bill of Rights did not think they existed, before the Revolution of 1688. I must say he has made us all thank God that we did not live under a state of things such as he described. He has been most liberal to us to-night. He admits boldly—in fact, he makes great concessions to us—he does not for a moment think of 395 denying the power of the House of Commons to vote the money. He does not contend that the Crown can take money. I thought at one time we were going back to Ship-money; but I was mistaken. Whatever other dangers I think there may be, there is no danger of that sort; the generosity of the Attorney General would keep them from it. I want now to test the doctrine of the Attorney General about the Dependencies of the Crown. He says that the Crown had the universal power of raising Forces for the purposes of defence before the Bill of Rights, and that that power, universal before, was abridged by the Bill of Rights solely with reference to the Kingdom of England, now represented by the United Kingdom. The Crown had, however, the right of maintaining Standing Armies except in England after the Bill of Rights, and everywhere as well as in England before the Bill of Rights. According to the Attorney General, there is no doubt at all about it. By his contention, it was perfectly competent to the Crown to maintain Standing Armies in every one of our American Colonies. That was the contention of the Attorney General. Now, in the first place, that was not the practice of the Crown. In the second place, it was not the practice of the Crown until very late and very evil times—the evil times preceding the American Revolt and Civil War, and when in that American Revolt and Civil War the great statesmen—for such they were, though bred within the narrow limits of small Colonies—set forth their grievances. Among them they stated this grievance charged upon the King of England—"He has kept among us in times of peace Standing Armies without the consent of our Legislature." That was set forth by the American people. It was the expression of the general practice. The Attorney General finds nothing in that declaration, nothing in Lord Camden, Lord Shelburne, or Lord Chancellor Bathurst, to support the theory that the Crown is entitled to keep Standing Armies in the Colonies at its pleasure. I own that these are pretty considerable objections taken to the legal doctrine of the Attorney General in matters of the very highest Constitutional import. The Attorney General goes on to say there is a power given to Canada, Under which in Canada an Army may be raised and 396 paid without the consent of the British Parliament further than as that consent is given by the Dominion Government Act, and that a similar power has been given in respect of the Indian Army by the Indian Government Act of 1858. Does the Attorney General think that these are parallel cases? Does he think that the powers of the right hon. Gentlemen among whom he sits are the same with respect to this Canadian Army as they are with regard to the Indian Army? Without doubt, Parliament gave away a portion of its power to Canada. It gave away a portion of its power to be exercised in Canada under the same Constitutional restraints as apply to the administration of the Army under the Mutiny Act, and so to be exercised that the Ministers of the Crown in this country have no more power over the Army of Canada than they have over the Armies of France and Germany. The responsibility of the direction of that Army is in the hands of the responsible Ministers of Canada, exercising powers which have been granted to them by the British Legislature. Is that the case with the Indian Army? It is, as the hon. and learned Gentleman knows, in every important particular, except that both have a Parliamentary authority, the reverse, because the Indian Army, so far from being entirely removed from the control of the Ministers of the Crown, is really at their absolute disposal. The Attorney General has done that for us for which I feel grateful to him. He has revealed to us in his speech the true doctrine and true contention of the Government. I listened in vain to the Secretary of State for the Colonies, and I listened in vain to the able speech of my hon. Friend the Under Secretary of State for India (Mr. E. Stanhope)—whose appointment, for his abundant promise, I heard with great pleasure—in the endeavour to extract from them the doctrine on which the Government means to take its stand. My hon. Friend the Under Secretary of State for India said he did not like extremes this way or extremes that way, and that the Government was moderate in all they did; but he did not give us the smallest iota of a clue to the laws, or the principles, or the securities by which the liberties of Parliament are to be guaranteed. But the Attorney General has 397 been very frank and very communicative. His doctrine, taken as a whole, is that it is the Prerogative of the Crown to make peace and war, to raise and maintain Armies, to discipline, command, and direct troops; that this Prerogative, which was universal in the glorious days of the Monarchy in the 17th century, though it was supposed to have received its death-blow in 1689, still continues in full force in the Dominions of the Crown everywhere outside the United Kingdom. And what has Parliament to do? Nothing at all, except to vote the money; and to vote the money when? Before it has been spent? Aha! if he had extended his generosity a little, and would only have given some inkling of an idea in his mind that we were to hear of the thing before it was done, and not after, it would have made all the difference. No, Sir; it is after it has been spent. How long? As long after as the Government thinks convenient. But according to what criterion? Not convenient according to the criterion of military necessity, but convenient according to the state of diplomatic negotiations and the state of political exigencies. So that the Government, according to the Attorney General, has the power to maintain what Forces it pleases, and use them as it pleases, and when it pleases, and where it pleases, and as long as it pleases, until it is under the necessity of finding money from this House; but as to the time of that necessity, it can exercise its own discretion, it is not bound to know anything of our previous consent at all, and there is no limit as to the time at which it is under an obligation to come and take us into its counsel. The Attorney General has not been complete in his examination of precedents; he has not condescended to look at the precedent of 1816, he has forgotten, or has not been informed, that in 1816 a large sum of money, forming a portion of the indemnity payable by France, came into the hands of the Government, and was proposed by the Government to be applied to the maintenance of the British Army in France. Now, I challenge the Attorney General again. According to his view and contention, the money having come lawfully into the hands of the Government, they were justified in applying it to maintain the British 398 troops in France without the authority of Parliament. That is the doctrine of the Attorney General; do not let there be any mistake about it; these things are too important for there to be any mistake about them; this is the beginning and not the ending of a Constitutional conflict. The vote of the majority will have a vast importance, of which I shall have a word to say by-and-by; but, whatever its importance may be, it will dash itself, like the idle wave against the rock, when it comes into conflict with the fixed, hereditary liberties of the British nation. In the teeth of the doctrine of the Attorney General, a demand was made on the Government of 1816—in excellent Tory times, in better Tory times than the present—a demand was made on the Government of Lord Liverpool to put that money under the control of Parliament and to vote the expense of those troops, and the Government of Lord Liverpool, strong in a majority even greater than that now possessed by the present Government, acceded to this demand. So much for the doctrine of the Attorney General upon these three fundamental principles—first, that the Bill of Rights did not declare the law, but made it; second, that it made it only for this Kingdom, and that no such law as it made had then existed or now exists outside this Kingdom; and, third, that provided the Crown can obtain the means to support troops, it may maintain them anywhere, except in the United Kingdom, without asking Parliament for its consent. That I believe to be the state of the case as regards the Bill of Rights and the offence Her Majesty's Government, in my view, have committed against the law—not against the Bill of Rights merely, but against that Common Law of which the Bill of Rights is, perhaps, not the most complete, but, at the same time, a most solemn historical expression. The Secretary of State for the Colonies thought he settled the question by showing that when the Union with Ireland was effected, the words "the United Kingdom of Great Britain and Ireland" were substituted for the simple phrase "the Kingdom." I am afraid the Secretary of State for the Colonies must have been in communication with the Attorney General, and must have had the simplicity of his mind in some degree 399 corrupted; for, as we have heard from the Attorney General to-night, that which politicians above all things eschew, when they have anything serious or important to do, is taking the views of the lawyers about it. This was the doctrine laid down in the preamble of the speech of the Attorney General. If there had been no such thing as a Common Law; if the whole law had rested merely upon the question of this word "Kingdom" in the Statutes, in the first place we never should have had the Declaration of 1775; but, passing that by, and granting that the change to the words "United Kingdom of Great Britain and Ireland" in the Mutiny Act would have been an important fact, it is of no importance whatever to the present state of the argument, because the word "Kingdom" does not derive importance from any grammatical and necessary meaning as found in the Bill of Rights, but from the relation of that portion of the Bill of Rights to the common law of the country, which common law could not possibly be affected by the question whether the Preamble to the Mutiny Act speaks of the "Kingdom" or speaks of the "United Kingdom of Great Britain and Ireland." I now come to the second of those breaches of the law which, it appears to me, the Government have committed—whether from taking or not taking the advice of the Attorney General beforehand I do not know—that is, the breach of the Indian Government Act. Bold it may be to challenge the Attorney General in his law; and I feel myself more at home when I challenge him on his history, for I do not suppose that he is a better authority upon what has occurred in the House of Lords than are the records that are placed in our hands. The Attorney General says there was an equivocal clause introduced by me into this House, and opposed by all the Liberal authorities. Such is the disinterestedness of the Attorney General, that he seems to prefer very greatly those Liberal authorities to all the Conservative authorities who warmly supported the clause. He paraded those Liberal authorities; he marched them out one by one on the floor of the House—Lord Palmerston, Lord Russell, Lord Granville, Mr. Wilson, and I know not who; and he appeared to pass by with contempt Lord Beaconsfield, Lord 400 Derby, and all the Members of the Government, who succeeded in carrying that clause by a large majority in a House in which they themselves were in a minority. The clause went to the House of Lords, and there, according to the Attorney General, either from the superior illumination of that Chamber, or the lapse of time and its beneficial influence in opening the human mind to truth, or from reflection upon the utterances of Lord Palmerston and some of his Friends, a marvellous change was produced, and Lord Derby was compelled to give way to the objection and to produce a clause of a totally different character. I quite agree it is of a totally different character from what the Opposition desired; but apparently the hon. and learned Gentleman has been misinformed as to what occurred. It is true Lord Derby said that, to obviate objections which had been taken to an apparent interference with the Prerogative of the Crown, he would amend the clause; but he never said he would produce another clause. He did not obviate the objections by the Amendments he made, and the opposition was continued in the Lords to the amended clause based upon the principle on which it had been denounced in this House. And why? Because the Lords knew perfectly well that the amended clause was a reality.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
I beg pardon of the right hon. Gentleman for one moment. I find in the records of Parliament—"The Earl of Derby moved to insert a new clause in the following words—Clause 55."
I apologize; I thought it had been done by way of Amendment; but I do not at all care whether it is new in itself, or only new in form. I think the Attorney General will admit that I am right in point of substance. A restriction was introduced upon the action of the Crown; it was introduced with regard to operations beyond the frontier. It was introduced "except in cases of grave and urgent necessity;" and instead of saying that the operations beyond the frontiers should not take place "without the assent of Parliament," it said that the Revenues of India should not be charged with these operations. That is the amount of the change. And now what does this clause mean? We have had 401 the Forces of India brought beyond the frontier; it has not been set up by the Attorney General as a defence that this is a sudden and urgent necessity. To maintain that it is a sudden necessity would be doing a violence to language which he would never dream of. A sudden necessity is that which has given no notice of itself beforehand. But this necessity, whatever it be—I do not know that it is a necessity at all—is a necessity which is in the sequence of a regular order of proceedings, one following upon another, and each one of which has been, in your mind and intentions, an introduction to the one that came after it. But, Sir, I think I have some title to speak of this clause, because the terms of it were terms on which I had the privilege of communicating fully with the present Lord Derby, who was Secretary of State for the period; and I must say that my views were entirely in consonance with those which he entertained, and I, for one, fully assented to that Amendment. Why? Because I saw it was a Constitutional improvement; that it maintained some control, and maintained that control in a Constitutional form, instead of in a form clearly unconstitutional. The consent of Parliament is now required to the military operations. What is meant by "the consent of Parliament?" Is it the previous consent of Parliament? The word "consent," I contend, as used, whether in an Act of Parliament or in the proceedings of this House—in the Parliamentary law of the country means, as in common sense it must mean, the previous consent of Parliament. The Attorney General does not mean that—he means the consent to-morrow, next day, a month hence, or any other time when you want the money. The Attorney General does not see the force of his own argument. If his argument were sound—that there is no limit of time applicable to the consent of Parliament—he would not have dwelt on the Amendment of the clause at all, for the old clause said it should not take place "without the approval of Parliament to the purposes thereof." But if you can have the consent of Parliament long after the fact, why might you not also have approval "to the purposes thereof" long after the fact? The Attorney General, I admit, has reduced that 402 clause to an utter farce—has rendered it a nonentity except for protection to the Revenues of India. The Attorney General should recollect what took place before that clause was enacted. He should recollect the Afghan War of 1840 and the calamities that followed it—the whole of that policy being carried through without the slightest intervention of Parliament at the expense of India. The same thing might happen again. The history of that time might be repeated if the construction of the Attorney General is correct. He would have consulted Parliament at his own convenience, but his application to Parliament might have been postponed till the great catastrophe that happened in Afghanistan. Sir, I maintain that the construction which the Attorney General has put upon the Bill of Rights and the law connected with it is an untrue construction, and that his construction of the India Government Act is a great deal worse than that—it is a preposterous construction. ["Oh!"] I should be the last man to use a disrespectful expression—I mean a construction which reduces the authors of the clause, and those concerned in passing it, to a preposterous position so far as regards restraints upon the Prerogatives of the Crown in regard to the Indian Forces, which constituted the reason of its introduction. Well, Sir, I will not dwell upon the element of concealment in this case, except to say that it would have been some consolation, in connection with the extraordinary proceeding that has been taken, if one had been able to perceive some kind of benefit that could accrue from such concealment. My noble Friend near me (the Marquess of Hartington) has pointed out that your purpose in all these proceedings—I address myself to the Representatives of the Government here—appears to have been two-fold; it has been to make a series of military demonstrations, and to obtain the consent of Parliament to those demonstrations, in order to strengthen your hands. Having those objects in view, you ought to have pursued a directly opposite course to that which you followed; and the moment you had obtained the knowledge that the thing could be done—which was knowledge easily obtained—you ought to have come down to Parliament and made your demonstration 403 effective in the eyes of Europe. Instead of that, however, matters have been carried on in secret; and by keeping the movement of these troops back from our knowledge, and by violating, as it appears to me, the Constitutional practice and the law of the land, you have contrived to make this into a most formidable subject of controversy, and the knowledge of that controversy cannot be confined within these walls, but must go throughout the length and breadth of Europe. I must say a word for the action under that clause which took place in the year 1859, because I do not think that the history, or the clear history, of that transaction has as yet been given. I am, beyond all things, anxious to call the attention of the House to the nature of the contention, as put by the Government, in this case. What we say is comparatively of little importance. We have no hope, charm we never so wisely, of charming your back benches into assenting to our proposition. I saw a few minutes ago, in his place, a Gentleman, an old Member of this House, to whom I should have wished to make an appeal—I mean the right hon. Member for the University of Cambridge (Mr. Walpole). There is another Gentleman, an old Member of this House, who has testified his opinion by his constant attendance, and by declaration already made. I want to know what are to be the votes of these Gentlemen? I hope my hon. Friend opposite (Mr. Newdegate) will not think it disrespectful that I should appeal to him; but I believe it is of the utmost importance to know the part that may be taken by old Constitutional Members of this House; and Gentlemen like my hon. Friend and the right hon. Member for the University of Cambridge have great responsibility resting on them on this occasion. It is a matter of great concern if those who have sat long in this House, who have sat with great Constitutional authorities, and who have seen matters treated very differently from this, if they should give their sanction to innovations of what I must describe a dangerous character. We have heard what the doctrine of the Government is—there is no limit at all affecting the employment of East Indian Forces by the Crown, except that they are not to be brought into the United Kingdom. I am glad that even that limitation is left; for when I heard 404 the speech of the hon. and learned Member for Chippenham (Mr. Goldney) last night, and the cheers that it drew from the Treasury Bench, I had great doubts whether he was going to leave us the limitation of the United Kingdom. I do not expect to be annoyed by the billeting of soldiers without the authority of Parliament; but it is no good answer on the part of the Government to assume that there is no likelihood of anything of that kind, and, therefore, we need not be disturbed. When these things occurred the country was within one step of a revolution, and a revolution came to put an end to them. What we want is not to go within one step of a revolution—not to go one step nearer a revolution than we now stand. But let us look at this contention—the Prerogative of the Crown cannot be limited except by some express enactment, and by the necessity of asking a Vote from Parliament when the Government find they cannot get on without it. The various East Indian regiments are all Her Majesty's Forces. The 55th clause has no reference whatever, except that they must ask us to Vote the money when the money has already been spent. So, Sir, it has come to this—that, in the time of a Conservative Government, when, from year to year, and from generation to generation, you have been fixing, as you thought, the full Force of the Empire—for I will not look after any 12 men or 50 men that may be employed for service possibly in some Crown Colony—when we think we have been fixing the Military Service of the Empire, and when we think we have confined them in safe bounds, we find a vast Indian Force, and are told by the Government that Her Majesty's control over this Force is an absolute power to direct them wherever She pleases, provided they do not come into the United Kingdom. The Crown obtains from Parliament the right to raise 135,000 troops—strictly limited as to the use of the men, firstly, by the Vote of the number; secondly, by the Vote of the money; and, thirdly, by the expiration of the Mutiny Act. But within two or three hours, by telegram, there are in another part of the world 200,000 or 300,000 troops, a number which, if need be, may be doubled, under no control from the Vote of number, the Vote of Money, or the control 405 of the Mutiny Act—that vast Force, having none of those restraints, unlimited as to number, and backed by a Treasury filled by more than £50,000,000 in the year—the whole of that vast Force is at the will and pleasure of Gentlemen sitting opposite, to be used for any purpose they please, without their saying why or wherefore, so long as they do not enter into the United Kingdom. Is that to be the state of things under which we are to live? I cannot listen for a moment to the plea that there is no practical danger. That was the plea that was made in the time of "Ship-money." It was said boldly and truly that Charles wanted the money for equipping a Fleet—it was really required; but such were his unhappy relations with Parliament he could not get it from them, and, consequently, he must get it where he could. Shall we consent to part with the securities obtained for us by our fathers? It is not merely whether we shall rush into the midst of danger, but whether we shall go within an inch of it. Do we think that liberty is a thing so safe, so popular at all times, that the sentinels of the Constitution may occasionally go to sleep? Is that the view entertained by the House of Commons? It may be that this Division will prove that such is the view of the majority; it may be that you will show that you are ready to assert that we have less liberty now than in 1865 and 1775; less than in 1865 because this had happened in 1859—the Naval Forces of France and England jointly sailed to the mouth of Peiho, carrying the Plenipotentiaries of the two countries, in order that in conformity with the Treaty of Tien Tsin they might convey the Treaty to Pekin to be ratified there. That Expedition was encountered by an assault from an ambuscade. It fought bravely, but suffered severely, and dishonour was inflicted on the flags of England and France. It was in the month of June, and Parliament was sitting; but there was no telegraph to China then, and the news did not reach the country till a few weeks after Parliament had been prorogued. The Government considered—and no one could question it—that a case of that kind, in which a Force approaching with no hostile intentions had been actually assaulted, repulsed, and for the moment defeated, was one of sudden necessity 406 in which it was our duty to send orders to the nearest Forces for the men wanted. No one questioned that proceeding; and I do not believe that any one failed to see that that was one of the cases excepted from the Indian Government Act as a case of sudden and urgent necessity. But when the war had been brought to a conclusion, it was still found necessary to leave in China some portion of the Forces, and that portion remained in China for some time, with the consent of Parliament, which was given on the ground that it was really a sequel—the continuous sequel—of a case, of sudden and urgent necessity, and therefore covered by the conditions of that case. But, after some time, General Peel pointed out the state of the case and the Government of Lord Palmerston assented to his view; and although the state of things had grown out of a case of sudden and urgent necessity, yet they agreed that the Indian Force remaining in China for the purpose of completing the transactions there should be treated as a Force subject to Parliament,, and that both the men and the money should be voted. Here is the Vote taken in the year 1866. This House actually voted—That a number not exceeding 178 of Native Indian Troops, belonging to Her Majesty's Native Indian Army, be maintained beyond the limits of Her Majesty's Indian Possessions.What I affirm is that this Vote expresses a compact between the Executive Government and the Parliament. It expressed the result of much discussion in this House, and that was that these Troops, though but the tail, so to speak, of an Expedition of necessity, should be voted by this House, though their number was only 178. Yet now we have the Attorney General telling us, not as to 178, but as to 178,000, the whole Force that the whole of India can yield—East, West, North, and South—can be taken by the Government, provided only that they get the money to pay for them without coming to Parliament. It is still more sad to think that we have lost something of our liberties even since 1775. In that year it was admitted that the word "Kingdom" in the Bill of Rights, in order to bring it into conformity to common law, must be understood to mean the whole of the Dependencies of the Crown; and now, in 1878, what was then unanimously 407 asserted is formally denied. The Attorney General sets up another case and says—What was the object or the use of foreign troops? The Bill of Rights does not speak of foreign troops, but of keeping up a standing Army; and therefore the Attorney General is entirely wrong in alleging that, as a matter of fact, the question turns on the employment of foreign troops. But the case of Indian troops requires more contention than if they were foreign troops. If they were foreign troops, who is to pay them?—and they would be only a handful of men; but in India you have 200,000 men, and might make them 400,000, and there is a Treasury of £50,000,000 to support them till it is exhausted. I find no difficulty in seeing my way to the right conclusion in these circumstances. I think it is our duty, from generation to generation, not to abandon, not to impair, not to suffer to be impaired, so far as it depends on us, the ancient and ancestral liberties of this country; but to guard with the utmost jealousy every security that has been thought wise by the great sages of the Constitution for the purpose of guaranteeing our liberties. I was out of town at the time when my noble Friend resolved on giving Notice of this Motion; but I heartily and cordially thank him for giving that Notice, and for his announcement to take the sense of the House upon it. I think if these things are to be done, they ought to be done in open day. The vote of the majority in favour of this proceeding will be an historical fact of cardinal importance. It is our duty to run the risk of that Vote. It will be a great evil—it will be a national calamity; but there is one evil greater and one calamity deeper still, and that is that the day should come when, at any rate, the minority of the House of Commons should shrink from its duty, and should fail to use every effort in its power to bring to the knowledge of the people the mode in which, and the circumstances under which, its liberties are being dealt with by its Representatives.
said, that he felt unwilling to follow the right hon. Gentleman the Member for Greenwich, but he thought it worth while to point out that the right hon. Gentleman had not been wholly accurate in his treatment of the historical precedents he had given. The two main points of his 408 speech had been the accusation against the Government of having incurred expenses without the consent of Parliament, and the charge that they had broken through the Constitutional bulwarks set up by the Bill of Rights. He would not follow the right hon. Gentleman into the reasons for the first accusation, because it was not covered by the Resolution before the House; but the second came under the terms of the Resolution, and was a Constitutional point with which the right hon. Gentleman had not dealt properly. What was the bearing of the precedent of 1775? Lord North's Government had undoubtedly infringed the Constitution, though Parliament did not think it worth while to cover them, by a Bill of Indemnity. But, in his opinion, the Constitutional principle they violated was not that declared by the Bill of Rights, but that laid down, in the Act of Settlement. They were wrong, not because they introduced troops into Gibraltar without leave of Parliament, but because they put foreigners into places of trust. He was aware that in the debates of that period a different opinion had been expressed. But of the speakers who supported that opinion he need only notice two—Lord Bathurst and Lord Camden; but there was some reason, he thought, to doubt the value of their opinions. Lord Camden was at the time violently hostile to the Colonial measures of Lord North, and the violence of his politics tended somewhat to impair the accuracy of his law; while, as to Lord Bathurst, even his admirers would not maintain that his legal knowledge was very profound. The Debate of 1794 dealt with a different subject—the introduction of foreigners into the United Kingdom—and the Attorney General, he believed it was, of the day, distinctly stated that, in his opinion, Gibraltar was outside the Kingdom according to the meaning of the Bill of Rights. If, therefore, Parliamentary precedent was to be consulted for the exact meaning given to the word "Kingdom," as used in the Bill of Rights and the Mutiny Bill, it would be found that the opinions of Lord Camden and Lord Bathurst were on one side; while, on the other side there was the fact that a large Military Establishment was maintained in Ireland, the opinion of the Attorney General to whom he had just referred, and the 409 statutory interpretation which, was put upon the Bill of Rights by the alteration which was made in the Mutiny Act in 1801. Indeed, it appeared to him that even the interpretation which was placed upon the Bill of Rights by Lord Camden by no means supported the allegation which his right hon. Friend opposite tried to found upon it. Lord Camden said that the word "Kingdom" meant all the Dominions of the Crown; and, if it did, India, no doubt, formed part of those Dominions. In that case, then, the Government could not have infringed the Bill of Rights, for the mere ordering of the transfer of troops from one part of the Kingdom to another was by no one maintained to be illegal. If, on the other hand, Lord Camden's interpretation was not accurate, Malta could not be said to be a portion of the Kingdom, and no troops had been introduced into the Kingdom in contravention of the provisions of the Mutiny Act. Whichever horn of the dilemma hon. Gentlemen opposite wished to choose, the Government, therefore, it seemed to him, stood absolved. The opinion which he took of the legitimate powers of the Executive seemed to him supported by the course that was taken by Parliament on the occasion of the India Bill of 1858. As to the clause which had been proposed by his right hon. Friend in that Bill in 1858, his recollection of what then occurred was that that clause was somewhat hastily accepted by the Government of Lord Derby. It was strongly objected to by Lord Palmerston and others, on the ground that it would unduly limit the Prerogative of the Crown; but it was passed in the House of Commons by a large majority. In the House of Lords, on the second reading of the Bill, Lord Derby took the same objection to it, and expressed it to be his opinion that in that respect it ought to be amended. When the Bill got into Committee, Lord Derby accordingly brought forward a new clause; but even to that Lord Granville objected, on the ground that it would unduly limit the power of the Executive, and he divided the House of Lords upon it. When the Bill afterwards came back to the House of Commons, although several alterations which had been made in it were not agreed to, the clause which had been substituted by Lord Derby for 410 that of his right hon. Friend was adopted, and that clause did not limit, and certainly was not intended to limit, the power of the Crown to transfer troops from one part of its Dominions to another. The only intention which the framers of the clause, he believed, had in view, was to protect the Revenues of India, and that object had been satisfactorily attained. According, then, to the accurate interpretation of the Bill of Rights, as well as under the Act of 1858, the Government had, he thought, been acting entirely within the limits of the authority with which they were invested. There still remained the broad question of the danger to the Constitution which might arise from allowing Indian troops to be brought to Malta, as in the present instance. What mystic virtue was there in the Isthmus of Suez, that it should be so wrong and unconstitutional to bring Indian troops through it? If it were not dangerous to bring Indian troops to Aden, it was not dangerous to bring them to Malta; and if our liberties were threatened by the existence of non-Parliamentary troops in the Mediterranean they could not be safe so long as there were non-Parliamentary troops in India. Seeing, therefore, that this Debate would serve as an important precedent in future years, he trusted that no mistaken view of the law would induce that House to unduly limit the power of the Executive of this country.
§ SIR GEORGE CAMPBELL
said, he was not about to enter into the military aspect of the question, notwithstanding some taunts which had been directed against him by the hon. Gentleman the Under Secretary for India on the previous evening. He felt that the question of the employment of the Native troops of India throughout Her Majesty's Dominions was one of such extreme importance, generally, that he should have liked to have discussed it apart from a great Constitutional question, which was in some respects of another character. He desired to confine himself on the present occasion to one special corner and view of this Constitutional question. The Government maintained that it was not unconstitutional for Her Majesty, in the exercise of Her Prerogative, to bring Indian troops into Europe, or into the countries adjacent to Europe, in excess of the number voted by Parliament; but they argued 411 that that power could not be exercised except by means of Supplies voted by Parliament. The answer to this was, that the limitation of the Prerogative by the necessity of Supplies had been avoided by the use of money, temporarily or otherwise, out of the Indian Exchequer. He was afraid Her Majesty's Government habitually obtained money from the Indian Exchequer when emergencies arose in our Possessions abroad, and he wished to know whether it was a fact that the Government exercised an uncontrolled power of procuring money from this source? He maintained, that if the Government thought they could by the mere exercise of the Prerogative order the expenses of these troops to be defrayed from the Indian Exchequer, they had been guilty of an unconstitutional and illegal act. It was quite true that the House had divested itself of the control over the Indian finances, for the Resolution usually passed late in August could not be called control; but the Indian finances had not therefore been left to the personal control of Her Majesty's Ministers, a Constitutional authority had been established, which stood in the same relation to Indian Revenue and Expenditure that that House did to English finances. The Act for the Government of India, constituted by Section 7, a Council of 15 members, and by Section 23, it was provided—At a meeting of the Council at which the Secretary of State is present, if there be a difference of opinion on any question, other than any question, with regard to which a majority of Votes at any meeting is hereinafter declared to be necessary, the determination of the Secretary of State shall be final.Now, what were the cases where a majority of the Votes of the Council was necessary? Section 41 answered this question; for it declared that—The expenditure of the Revenues of India, both in India and elsewhere, shall be subject to the control of the Secretary of State in Council, and no grant or appropriation of any part of such Revenue or any other property coming into the possession of the Secretary of State in Council by authority of this Act, shall be made without the concurrence of a majority by the Votes at a meeting of the Council.Now, he wished to know whether the expense which had been incurred in the present case, and defrayed out of the Indian Exchequer, had been voted by the Indian Council? It might be that the Secretary 412 of State had asked for and obtained the consent of the Council to this appropriation of Indian funds; but if so, let the fact be made known to the House. He feared that since the establishment of the telegraph, India had come to be very much governed outside the Constitutional method—that it had come to be governed by telegrams passing between the Secretary of State, or a still greater person, the Prime Minister, and the Governor General of India. Successive Secretaries of State seemed to have come to believe that the clause to which he had referred had not any practical effect, and had got into the habit of overriding it. The Government might think that they were not bound to apply to the Council, and that the clause was not applicable to an expenditure such as that now under consideration; but if they held that opinion, let them say boldly that they were entitled to exercise a despotic power. He wished to ask Her Majesty's Government three Questions—first, whether, in order to make the expenditure for the transport of the Indian troops legal, it was not absolutely necessary that it should have the sanction of a majority of the Indian Council? secondly, whether the Government maintained that they were entitled to exercise a despotic control? and, thirdly, whether for the future they would consider themselves bound by the Act?
§ MR. FORSYTH
said, that he wished to explain the vote he intended to give. The noble Lord the Leader of the Opposition had by his Resolution asked them to affirm a grave and important Constitutional principle—he did not agree with his hon. and learned Friend the Attorney General that it was a quibble of the Constitution—and the question ought to be discussed without heat or passion, and, if possible, without Party feeling. He feared, however, that in the present condition of affairs, it would be impossible to discuss a question of this nature without something of Party feeling; but no Party consideration ought to induce them to deny or impair a sound Constitutional maxim. They ought to be as jealous as their forefathers were with regard to the Constitutional control by Parliament over the military Forces of the Crown, and transmit to their posterity the same heritage of freedom which they themselves 413 had received. If the only question had been the Resolution of the noble Lord, without amendment, he could not have voted against it, because he believed that it affirmed a sound Constitutional principle. He understood the Resolution to refer to the Regular Forces in the pay of the Crown, maintained out of the taxation of the country, not to the local Forces raised and kept in the Colonies, and paid for by the local Legislatures. It was clear that Her Majesty had no power to enlist foreigners except with the sanction of an Act of Parliament. The first Act in the last century authorizing this was passed in the reign of George III.; and during the Crimean War the Act 18 Vict. c. 2 was passed, "enabling" the Crown to employ foreigners, who were not to serve in the United Kingdom. To raise and keep troops in the Dominions of the Crown and in its pay, beyond the number authorized in the Mutiny Act, without the consent of Parliament, would be, in his opinion, a fraud upon that Act; for by garrisoning their Colonies and Dependencies by such troops, "in defence of the Possessions of the Crown," the necessity for so large a number as Parliament had voted would no longer exist, and the superfluous number might be brought into this country, and form part of the Standing Army here, contrary to the spirit of the Mutiny Act and the Bill of Rights. Of course, in time of great emergency this might be done, and, if necessary, a Bill of Indemnity would be passed. But the Resolution of the noble Lord had been met by an Amendment, which contained an equally sound Constitutional principle with that contained in the Resolution. He was prepared to accept both propositions—the Resolution and the Amendment—because they did not conflict with one another; both were true and sound expositions of Constitutional Law. He thought, however, that the Government had been perfectly justified in moving the Amendment—for they must, to a certain extent, interpret the meaning of a Resolution by the way in which it was supported; and no doubt, the intent in moving the Resolution had been to attack the policy of moving the Indian troops. In three similar cases—in 1775, 1794, and 1816—the same course had been adopted, and the Previous Question had been carried by the Governments of the day. To show 414 how jealous Parliament was of its control over the numbers as well as the pay of the Forces of the Crown, he would quote a few historical cases. The hon. and learned Member then cited several precedents in proof of his position, beginning with the year 1734, when a Message was brought down from King George I., hoping that he might be allowed to augment His Army, but that was opposed on the ground of danger to the country. The Addresses, however, were carried. That and subsequent precedents showed the jealousy of Parliament in keeping full control over the Army. Then, as to the moving of the troops from India. The Government might complain that no distinct Resolution had been brought forward condemning it. If it had been, they might have justified what they had done on the ground of emergency. He denied that what had been done was unconstitutional; still he regretted that Parliament was not told of it much earlier. As far as he was concerned, he saw no principle on which the Crown should be prevented moving troops from Calcutta to Malta, apart from any question of finance, any more than that they should be disabled from taking a precisely opposite course. Then, as to the question of finance, the Act of 1858 did not limit the power of the Crown to move Native Indian troops from India, but it provided that the expense incurred by such an employment of those troops as the present, should be borne, not by the Indian, but by the Imperial Exchequer. The present was not the time to discuss the policy or expediency of the course adopted by Her. Majesty's Government; but there was one point to which no allusion had been made, to which he desired to refer. Under existing Acts, the Governor General of India had power to appoint courts martial for the trial of Native soldiers serving in India, or between the Straits of Magellan and the Cape of Good Hope. He thought, however, that when these troops reached Malta, it would be found that there was no Mutiny Act which would apply to them, and that the Government would have to ask Parliament for the necessary powers. He did not dissent from the Resolution in terms—and he also agreed with the Amendment. That being so, as the Government told them that passing the Resolution 415 would weaken their hands in the present state of foreign affairs, when the prospect of the meeting of a Congress had never before been so favourable, and seeing that he had no wish to do that, he should vote for the Amendment.
§ MR. NEWDEGATE
said, that the hon. and learned Gentleman who had just spoken (Mr. Forsyth) had said, that he could see no distinction between the Motion and the Amendment before the House. But, if there were no distinction, why had the Amendment been moved? He felt strongly, that the time had come when the great Constitutional doctrine, stated in the Motion before the House, ought to be affirmed. He was, therefore, prepared to vote for the Resolution of the noble Lord the Member for the Radnor Burghs. It was time that the House should assert its Constitutional control over the Armaments employed by the Crown. He would have the House consider, how largely, within the last few years, the Armaments of this country had been increased. The Standing Army was at present, roughly speaking, double what it was in the year 1855. The Reserves were of themselves almost equal to the numbers of the Standing Army in some former years. The character of the Militia had been changed into that of a Reserve, by its command having been transferred from the local Lords Lieutenant to Officers immediately dependent on the Ministry of the day. It might have been necessary thus to augment the Force at the immediate disposal of the Crown; but, surely, when all this had been lately done, it was not a period for Parliament to relax its Constitutional control over the increased Forces placed at the disposal of Her Majesty's Ministers. And was it not just cause for jealousy on the part of the House, when it found that a Government, that called itself Conservative, and had been considered eminently Constitutional, was, in the case of these Indian troops, violating the provisions of the India Act of 1858—an Act, which some of those same Ministers, when formerly in office, induced Parliament to pass into law? It happened that he (Mr. Newdegate) had rather peculiar and personal knowledge of the circumstances connected with the passing of the India Act. It was not very long 416 before the passing of that Act, that the late Lord Derby had the kindness to invite him to become Secretary to the Board of Control in his Government—an office which he felt obliged to decline; but he served on the India Committee, and, at that time, took a very deep interest in the future constitution of the Government of India—a fact of which the late Lord Derby was perfectly aware. The India Act was passed in 1858, and he need only advert to what occurred in this House, with respect to a clause, that would restrict the power of the Crown in the disposal of the Native Forces of India, and that was carried through this House on the Motion of the right hon. Gentleman the Member for Greenwich (Mr. Gladstone). The present Lord Beaconsfield, the present Lord Derby—aye, and all the Conservatives in the House—voted for the clause; and that clause imposed a positive restriction upon the removal of Indian Troops from India without the consent of Parliament. The right hon. Gentleman the Member for Greenwich had informed the House that another clause was substituted by the House of Lords for the clause which this House had adopted upon the right hon. Gentleman's Motion; that was the 55th clause of the Act for the Government of India; and, with the permission of the House, he would call its attention to the speech of the late Lord Derby, when he moved this substituted clause, the alleged violation of which by Her Majesty's Government touched the real legal question before the House; for, having been in communication with Lord Derby on the subject of India, he knew that the clause spoke that noble Lord's intentions. The clause ran in these words—Except for preventing or repelling actual invasion, of Her Majesty's Indian Possessions, or under other sudden and urgent necessity, the Revenues of India shall not, without the consent of Parliament, be applicable to defray the expenses of any Military operation, carried on beyond the external frontiers of such Possession, by Her Majesty's Forces charged upon such Revenues.The Earl of Derby, in proposing the clause, said—this was from Hansard—The object of the clause was to impose a certain restriction upon the Prerogative of the Crown—These were the first words Lord Derby uttered— 417through the intervention of Parliament. It was erroneously thought that it would prevent the Crown from employing Indian Forces upon any foreign Expedition. The clause had no such object or effect; or, after it passed, the Crown would be at full liberty to employ those Forces in any quarter of the globe for which, by the terms of their enlistment, they were eligible.He (Mr. Newdegate) did not dispute what an hon. Member had said, who held that the Indian Mutiny Act sufficed for the employment of those troops in any quarter of the globe. Lord Derby went on to say—It being the undoubted Prerogative of the Crown to make war and peace, the Constitutional check upon the exercise of that Prerogative was the sanction of Parliament by the granting of the pecuniary resources.What, then, became of the mere financial argument? Lord Derby proposed this clause in order that the House of Commons might have the opportunity, by its financial operations, of sanctioning or refusing to sanction the employment of those troops. What, he asked, became of the idea, that this clause was intended to be hung up for an indefinite period, during which those troops might be employed without the concurrence and immediate consent of Parliament? Lord Derby observed—The Crown could not send out Forces unless Parliament provided the funds to pay them; but it was necessary to introduce this clause for protection of the Revenues of India. The effect of the clause would be, that Indian troops, except for the purpose of preventing anticipated invasion, or of repelling actual invasion, should not quit their own territory.He (Mr. Newdegate) did not understand that Her Majesty's Government anticipated an immediate invasion of India, nor did it seem to him that any sudden or urgent necessity existed. Their present action did not, therefore, come within the exception to which Lord Derby referred in moving this clause. Lord Derby continued—Or, if they did, the expense should be defrayed out of the Revenues of this country, and not out of the Revenues of India. If the troops were employed out of India, it would be for Parliament to decide whether they were employed upon Indian or Imperial objects.Now, it had always been held that the Indian Forces might be employed for Indian objects, without the Government coming to this House; that he did not gainsay. Yet it had been said by the 418 hon. Gentleman the Under Secretary for India—"Why, the troops could not be employed in the Island of Ceylon;" but it was clear that Lord Derby, when he moved this clause, intended that, for Indian purposes, the consent of Parliament should not be required for the employment of those troops. Lord Derby went on to say—The clause did not prevent the Crown from making use of the Indian troops, subject only to this—that, as a general rule, the expense of those troops must be defrayed by Parliament; and the same constitutional check, therefore, was imposed on the Crown with regard to troops serving in India, which was imposed with respect to troops serving in every other part of the globe.That was the intention of the clause. [Mr. ASSHETON CROSS: Hear, hear!] The right hon. Gentleman the Home Secretary said, "Hear, hear!" but he (Mr. Newdegate) could show him that the construction which the right hon. Gentleman put upon this clause was not in accordance with the understanding of its Mover.If"—proceeded Lord Derby—"the clause were not agreed to, it would be perfectly competent for any unconstitutional Sovereign to employ the whole of the Revenues and troops of India for any purpose which the Crown might direct, without the necessity of going to Parliament for the advance of a single shilling."— [3 Hansard, cli. 1697–98.]Now, what Her Majesty's Government had done was this. They had moved those troops from India for employment at Malta during a period of peace, and whilst Parliament was sitting, without applying to Parliament for its consent. When Her Majesty proposed to call out the Reserves, the Government advised Her Majesty to send a Message to both Houses of Parliament, and applied for the consent of Parliament before they ventured to embody the Reserve—indeed, before they summoned a single man of the Reserves; and he (Mr. Newdegate) contended, that according to the intention of Parliament, both according to the clause passed by this House in the first instance, and afterwards by the clause in the Indian Act, which Lord Derby carried in the House of Lords, the consent of Parliament, as the right hon. Gentleman the Member for Greenwich had argued, meant the previous consent of Parliament, in the case of the Indian troops, when employed out of Asia, exactly as in the case of the Reserves; and it was in this respect that 419 he ventured to state, that from his understanding of the intentions of the late Lord Derby, who carried this clause, and from the manner in which that noble Lord resisted the subsequent attempts which were made to alter or to interrupt the progress of the clause, that it was clearly the intention of the late Lord Derby, and the intention of the House of Lords when they passed the clause, and the intention of the House of Commons who accepted it, that the consent of Parliament should be obtained before any of the Indian troops were moved out of the Indian territories. His conviction did not rest only upon what he had stated. In 1857, the year before the Indian Act was passed, there was a most remarkable debate in this House. On the 16th of July, 1857, the hon. and learned Member for Sheffield (Mr. Roebuck) moved a Resolution in this House, condemning the Government of Lord Palmerston for the employment of Indian troops in Persia. That Resolution was proposed at a most peculiar period. It was in the very height of the Indian Mutiny; therefore, the House of Commons felt that that was not a time when it would have been right to cast any reflection, however well deserved, upon the Government with respect to anything connected with the use or employment of the Indian Forces. He would mention a few facts and dates, which would show why Parliament did not think it right at that moment to interfere. It was not until the month of September that Lucknow was relieved; it was not even then in the full possession of the Crown; Delhi had not been taken. The Indian Mutiny was not declared to be suppressed until December the 20th. Therefore, as that Mutiny was at its height in July, Parliament very properly withheld any expression of opinion that might have appeared to reflect upon the conduct of Her Majesty's Government. Now, that was a crisis—that was an emergency. They talked of an emergency now; what was the emergency now, compared with the emergency in the month of July, 1857? Yet the House of Commons would not, he believed, have refrained from expressing an opinion against Lord Palmerston's employment of Indian troops without its consent, unless Lord Palmerston had apologized to the House. On the 16th of July, 1857, Lord Palmerston said— 420I contend, on the contrary, that our Constitution wisely and properly vests in the Crown the Prerogative and the discretion of declaring war and of making peace, with the reserve, however, which I readily admit, that when the Advisers of the Sovereign have deemed it their duty to counsel the Crown either to engage in or put an end to war, it is incumbent on them to lay before Parliament, if it is sitting, the grounds upon which the one course or the other has been adopted; or, if Parliament is not sitting, when the interests of the country are deemed to be such as to require recourse to be had to war, I frankly and freely admit it to be their duty to take the earliest opportunity of calling Parliament together in order to submit to it their reasons for resorting to hostilities. I should be the last man to deny that general proposition. I maintain, however, that in the case to which the Motion alludes, there were circumstances which rendered it a special case, and excepted it for the moment from the application of that general rule.What, further, did Lord Palmerston say? Having admitted that he had no right to remove those troops out of India and employ them in war, without the knowledge of Parliament, as a general rule, he went on to say, in answer to the question, why he had not specially convened Parliament?—The earliest moment at which it would have been right to call Parliament together, with the view of stating to them the course of proceeding with regard to Persia, was the 16th of December, when it is acknowledged that the Declaration of War was actually issued. Parliament then stood summoned for the 3rd of February. The Christmas Holidays were approaching, and the earliest period at which it could have assembled would have been the first or second week in January. Therefore, the only laches, if laches it was, would refer to the short interval between the middle of January and the 3rd of February, on which day Parliament met. If the war had been one with a European Power, involving great and serious consequences, and likely to require the immediate co-operation of this House, I admit that even that brief delay ought to have been avoided. But, considering the remoteness of the scene of action; considering that no immediate requisition was necessary to be made to Parliament for the purposes of the war, we thought it would be attaching more importance to the matter than it intrinsically deserved to anticipate the period for which Parliament stood convoked, and to issue a Proclamation calling it together a fortnight sooner for the purpose of announcing to it that operations were going on in Persia. But we did in the Speech from the Throne at the opening of the Session communicate to the Legislature the facts of these disputes with the Shah, as well as the naval and military operations, which had taken place."—[3 Hansard, cxlvi. 1638–39–40.]Therefore, Lord Palmerston admitted that he had no right, even when he felt himself bound to advise a Declaration of War, to move those Indian troops out of 421 India without the consent of Parliament, and even though he might have had to call Parliament together for the purpose. In the next year, in order to remove all doubt on the subject, Parliament passed the clause which he (Mr. Newdegate) had read to the House, with the exposition which was given of that clause by its Mover, the late Lord Derby; and he would ask Her Majesty's Government, why it was that now, in a period of peace, they, the Leaders of the Conservative Party in Parliament, had disregarded and set aside the provisions of an Act which was passed by their former Leader, and which he, who had served under Lord Derby, now told them was passed with the object of preventing the very action which the Government had taken in this instance? He would give the House another proof of this. In the year 1867 the Abyssinian War was likely to occur; and what did the Mover of this clause in the India Act—Lord Derby—do? He convened Parliament in November; and his (Mr. Newdegate's) late Friend (Lord Hylton), who had succeeded him as Whipper-in to the Conservative Party, and was subsequently made a Peer, seconded the Address in reply to the Speech from the Throne. In doing so, he declared that Parliament had then been convened, because it was constitutionally necessary that the consent of Parliament should be obtained before the Indian troops could be employed in Abyssinia. He thought, then, that he had ground, from personal knowledge, for entertaining the opinion, which he did with sincere regret, that Lord Beaconsfield's Government had violated the provisions of an Act which several of themselves passed when formerly in Office, and not only the letter, but also the sense, of the clause which their former Leader carried, for the very purpose of restraining the action which they had now taken. He regretted extremely that this case should have arisen. Why Her Majesty's Government had not come down to the House, and, in conformity with the precedent of 1867—for they had not to convene Parliament for the purpose, Parliament was sitting—why they had not asked the consent of Parliament for the employment of those Indian troops, he owned that he could not understand—unless he was to understand, from the speech that had been made by the 422 Attorney General, and from other speeches which he regretted to have heard from the Ministerial Benches, and from which it appeared that the doctrine, which now for the first time they sought to establish, was, that the Advisers of the Crown were to have full liberty, and without previously consulting Parliament, to employ a large number, perhaps 100,000 or more, of these Indian troops, whenever they listed, in any part of the world. He held that that would be a most dangerous power for any Ministry, however composed, to possess; for he contemplated, as Lord Derby contemplated, as possible, the contingency of some Prime Minister, or some Sovereign, succeeding, who might be disposed to ignore the safeguards for British freedom which had been erected by our ancestors, and had existed for generations and for centuries, to preclude the possibility of our fellow-countrymen, or this House, their Representative, being overawed by a standing Army, and to preclude the possibility of the policy of this country abroad being compromised by the unconstitutional action of any Minister or Sovereign, without the consent of Parliament—to preclude the possibility of the country finding itself engaged in a war that it might deprecate, and that it might have avoided, if Parliament had intervened. He had ventured to address these few words to the House. After the able and exhaustive speech of the right hon. Gentleman the Member for Greenwich, he felt that, as an old Member of the House, to whom the right hon. Gentleman had appealed—and one, who had considered somewhat gravely wide Constitutional questions—that he should risk weakening the force of the right hon. Gentleman's powerful oration, by venturing another word in support of the right hon. Gentleman's arguments.
§ SIR HENRY HAVELOCK
said, the last speaker was entitled to their sincere congratulations for his clear, manly, and out-spoken enunciation of Constitutional law and principles. It was said this was not the best time to discuss the policy and economy of removing Indian troops out of India; but it was to be feared that if those points were not now discussed, they would escape consideration. He condemned the conduct of the Government on three separate grounds—first, on the ground of Constitutional law, 423 secondly, on the ground of economy, and thirdly, on the ground of policy, both as affecting this country and India. He must, first of all, say a few words with regard to the Indian troops themselves. Some hard and undeserved things had been said against them, and he felt bound to say a word or two in their defence. These men were loyal, well-disciplined, faithful, orderly, and obedient servants of the Crown. In circumstances new and unexampled, they were leaving their home and kindred with alacrity and cheerfulness at the call of the country to which they had sworn allegiance, and when they arrived at Malta they should be met, not with terms of disparagement and reproach, but, as far as their military conduct went, in terms of eulogy and praise, and should be treated with consideration and kindness. It was said they were Mahomedans, and therefore likely to engage in this expedition with a sympathy they might be supposed to have for the Turks. As a matter of fact, he might say the majority of the men were not Mahomedans; three-fifths of them were Hindoos, and had no more sympathy with Turkey than he had. The first ground upon which he condemned the conduct of the Government—namely, that of Constitutional law—could not be more distinctly defined, or with more vigour and force, than by the Resolution submitted by the noble Lord the Leader of the Opposition. Two questions were presented to the House—first, was the employment of these troops, without the consent of Parliament previously obtained, legal or illegal? and, secondly, assuming their employment to be illegal, was there anything in the circumstances of the case which the Government could plead in justification for having departed from, the law? He thought it was impossible to deny the illegality of the conduct of the Government, after the elaborate and wonderful speech of the right hon. Gentleman the Member for Greenwich. Nor did he think there was any emergency to justify the Government in moving these troops without the previous consent of Parliament. With regard to his second ground of objection, he observed that no troops under the British Crown, in their surroundings and their peculiarities, were so expensive as these troops which had been brought from India to Malta. He believed they required, by two-thirds, 424 more tonnage than any other troops in the world. If, in 1875, the Government had adopted a plan which he and others suggested, there would have been no necessity for looking to India for a military reinforcement—they would have at their command a reinforcement which, for military purposes, would have been three times more efficient than that to which they had resorted, and which would occasion enormous expenditure. If the Government had increased the Militia Reserves from 30,000 to 40,000, the cost would have been only about £45,000 a-year. Those 10,000 additional men would have been sufficient to fill up 21 battalions of the Line. With regard to his third ground of objection, he would observe that the result of the step taken by the Government was at least questionable, and might be fraught with danger to India and to England. If these 7,000 Native troops from India were to be followed by such a number as would have weight in Europe, we should have to make a total change in our Indian policy, in this respect among others—we should have to insist on a disbandment of the Armies of the independent Native Princes. With regard to the Amendment moved by the Secretary for the Colonies, it affirmed that the Constitutional control of Parliament over the raising and employment of the Military Forces of the Crown was fully secured by the provisions of the law. Now, part of the law in reference to that case was contained in the Act of 1858 for the government of India, which said that Indian troops should not be used outside the limits of India at the expense of the Revenues of that country. He asked, therefore, of what use the law was, when it was overridden, as it had been in this instance, through the action taken by Her Majesty's Government? The Amendment also affirmed that the control of Parliament was secured by the undoubted power of the House to grant or refuse Supplies. But what did such a power really amount to, after the expense of moving those troops had been actually incurred? The House was placed, practically, very much in the position of the traveller whose money was demanded from him by the highwayman who held a pistol at his head. In conclusion, he did not wish to weaken the hands of the Government in a time of difficulty. That 425 statement might be received with incredulity—but in proof of it he had that day withdrawn from the Notice Paper of the House a Motion relating to the efficiency of the Indian troops, because he had been assured, on good authority, that it would be inconvenient for the public interests to proceed with it. This was a great Constitutional question, and he hoped that many hon. Members opposite, following the example of the hon. Member for North Warwickshire (Mr. Newdegate), would support the Resolution of the noble Lord. If the Members of the Opposition did not vote for the preservation of the Privileges of the House of Commons in such a vital question, they would have voluntarily abandoned their functions as guardians of the public purse. If, ignoring the merits of the question, hon. Members opposite voted blindly with the Government, they would show that, instead of being jealous preservers of Constitutional privileges, they had become a mere machinery for registering the personal acts of a personal Government.
§ * MR. GRANTHAM
I do not intend to follow my hon. and gallant Friend (Sir Henry Havelock) through the arguments he has used to induce us to vote for the Resolution; because he has devoted himself exclusively to the question of the policy of bringing over Indian troops to unite them with our English Army for service in Europe or in Asia, instead of attempting to grapple with the question of law raised by the Resolution of the noble Marquess (the Marquess of Hartington). I would willingly follow him through those fields over which he has travelled, because I look upon this measure as one of the greatest masterpieces of Her Majesty's Government; but I must ask the House to travel back to the only question now before us—namely, has the noble Lord correctly stated in his Resolution the Constitutional law of England upon the subject? It is a question of the greatest importance, not only to present times, but to future ages; and I do not regret, in the slightest degree, that the question has been brought forward—nay, rather I rejoice that it has been—because, as we have unfortunately so often been ranged in this House in battle array upon this Eastern Question, and we on this side of the House have been so often attacked in such a way as to stir up in our breasts the strongest 426 feelings of Party antagonism, it is a matter of great congratulation to me that we can discuss this question with the coolness rather of lawyers than with the heat of Party politicians. The noble Lord asks us to affirm that the Crown cannot, without the consent of Parliament, raise or keep troops, either in the United Kingdom, or in any part of the Dominions of the Crown, excepting those actually serving in India. Now, I think I can show conclusively that that is not Constitutional law, notwithstanding the able speeches of the right hon. Gentleman the Member for Greenwich and the noble Marquess. They rest their defence entirely on the Bill of Rights, and they contend that, because by that Statute no troops can be kept "within the Kingdom except those enumerated in the Mutiny Act;" therefore "Kingdom" must be held to include all the Possessions of the Crown. Now, I think those Members who have spoken have omitted to notice that there is something besides keeping troops which is so restricted—the words of the Act are "raising or keeping." What does that show, as read by the light of the contemporary history of the country and of the debates of that period? Why, that Parliament was objecting—and we know it did object—to the diminution of the population available for the agriculture and commerce of the country. It objected to a number of the able-bodied men of England being kept in idleness, and tempted to lead a boisterous and dissolute life, instead of increasing the trade and wealth of the country by adopting peaceful pursuits. It was, therefore, England and English interests that Parliament was protecting, and not the whole of the out-lying Dominions of the Crown, whose interests in those days were always made secondary to the interests of England. Finding, therefore, that the "raising" troops only referred to the Kingdom alone, what is there to show that "or keeping" referred to a different area—namely—England plus the Dominions of the Crown? If you look a little further down the Statute, you will find that the framers of the Act were well aware of the difference between the "Kingdom" and the "Dominions of the Crown," because they use both terms together when, later on in the Statute, but not in reference to the raising or keeping of troops, they refer to the 427 Kingdom and Dominions of the Crown collectively. Besides, we must not forget that, except as affected by Statute, or the principles therein declared, the Prerogative of the Crown to direct the movement of troops, and to make war or peace is undoubted. And, unless you bring the Crown within the Statute itself, or within the principle of the Statute, you cannot limit that Prerogative; neither must we forget that what Parliament was so sensitive about in those periods of civil strife was lest they should be coerced, as they had been, by an armed Force, in the days of the Commonwealth, or lest the Government of the country should be overthrown by Royal troops in the pay of a Sovereign who might come to the throne at heart a Romanist, though by name a Protestant. What they were looking to, therefore, was the protection only of something within the four corners of England. Let us now pass on to the subsequent Statutes which have since been almost annually passed, called the Mutiny Acts, and see if there is anything there to show what was the view of Parliament as evinced year by year from its legislation. If there was any doubt as to its meaning in the Bill of Rights, there can be, I think, no doubt as to its meaning in the Mutiny Acts. Prior to the Union of Great Britain with Ireland, you always find that the words "within the Kingdom," or "within Great Britain" used. After the Union with Ireland, it is always "within the United Kingdom of Great Britain and Ireland." These are the words—Whereas the raising or keeping a Standing Army within the United Kingdom of Great Britain and Ireland in time of peace, unless it be with consent of Parliament, is against law. And whereas it is adjudged necessary that a body of Forces should be continued for the safety of the United Kingdom, and the defence of the Possessions, of Her Majesty's Crown, that the number shall be, &c., &c.You also find that the troops which were raised in Ireland by the Crown, through the intervention of the Irish Parliament prior to the Union, and the troops raised in other Possessions, were never included in the numbers mentioned in the Mutiny Acts passed by the English Parliament. If the Crown of England were able to use those troops, as we know it did use them—especially the Irish troops—for English wars, how can it be said that the Crown could not keep 428 troops in its Dominions, or move them, from one Dominion to another without first coming to Parliament? History sometimes repeats itself, and, singularly, we find, by looking to the debates in the Irish Parliament that took place two years after those debates in 1775 in the English Parliament, on the introducing Hanoverian troops into Gibraltar and Port Mahon, and which have been so often alluded to—namely, on November 27th, 1777, a Resolution, was passed in the Irish Parliament, mutatis mutandis—India for Ireland—identical with what has now taken place in reference to these troops. It is this—That 4,000 troops, out of the 12,000 voted for the defence of the Kingdom (Ireland), be spared for His Majesty's service, the same to be no charge to Ireland after quitting the Kingdom.Now, as no application was made to this Parliament that I can find, for leave to borrow these troops, the case seems to be identical. "But," says the noble Lord and the right hon. Gentleman the Member for Greenwich, "in the debate of 1775 the Lord Chancellor Bathurst gave up the point, and admitted that 'Kingdom' included 'Dominions.'" All I can say is, if he did say so, I think he was wrong; but, as the report of his speech is contained in about eight lines, it is evidently only what the writer, who very likely did not hear him, thought was the purport of what he said. If we look to what was said by the other great legal authority who spoke against the right claimed for the Crown by Lord North—namely, Serjeant Adair—we find he objected to it, not because of the actual words of the Bill of Rights, but because it wasdeducible from the same principles of law and Constitution as that which induced our ancestors to pass the Bill of Rights as to keeping troops in the Kingdom.Admitting, therefore, practically, that he did not agree with Lord Bathurst whether it was or was not within the principles of the Act may be a question of opinion which may be open to argument as much now as then. I think clearly it was not; and not one authority has been referred to to show that it was, beyond that debate, which ended in nothing. The difficulty raised by many Members, and which has induced them to affirm the noble Lord's Resolution, namely—That the troops, when moved out of India, are subject to no Mutiny Act, and cannot be tried by court martial,429 is entirely fallacious, because Section 4 of the Mutiny Act seems to have been passed for the very purpose of this case, as it alludes to other troops raised by the Crown beyond those referred to in the Preamble to the Mutiny Act, and says that directly any such troops are raised and kept within the Dominions of the Crown, they shall be subject to the provisions of this Act as far as courts martial are concerned. If the Crown has no power to raise or keep troops in its Dominions, beyond the number sanctioned by the Preamble to the Mutiny Act, as the numbers to be kept within the United Kingdom of Great Britain and Ireland, there is nothing, and can be nothing, to which this section applies; and it is one of the first canons of construction, that to give a legal construction to a Statute, something must be found on which the words of the Statute are to operate. There is another point which seems to me of importance, but to which attention has not yet been drawn, and that is the language of the Marine Mutiny Act, which is annually passed side by side with the Army Mutiny Act. Now, it is quite clear that our Navy cannot be raised and maintained merely to remain within the United Kingdom of Great Britain and Ireland; but, if the keeping of an Army in foreign parts, or in the Queen's Dominions outside of England, was contrary to the Constitution, why was not the keeping of a Navy and a Force of Marines? Yet the Bill of Rights is silent as to keeping up Marines or Sailors, and you find no reference in the Marine Mutiny Acts to its being illegal to keep them, no reference to the "United Kingdom of Great Britain and Ireland," but only to the "United Kingdom and the Dominions of the Crown;" nor is there any limit whatever given to the number to be kept or maintained. Yet even in those days it was to our Navy that we mostly trusted for our armed defence, and which would be as formidable as our Army, if the Crown wanted to use it for attacking our foreign Dominions. How can there be any doubt, therefore, as to the meaning of the words "within the Kingdom," as used in the reign of William and Mary, or "within the Kingdom of Great Britain and Ireland," as used in our own Statutes, and that the words bear their ordinary meaning, and do not refer to Dominions in foreign parts? The right 430 hon. Gentleman the Member for Greenwich has made, no doubt, a most captivating speech, in which he has talked very eloquently of unconstitutional and illegal acts, and has carried us back to the days of ship-money and the Star Chamber; but he has utterly failed to grapple with these facts, and has attempted to overawe the judgment of the House by painting to them vivid pictures of the Crown, acting on the advice of autocratic Ministers, transforming, as it were, Lord Beaconsfield into Oliver Cromwell, and commencing wars, and using our Indian troops for weeks, months, and years, without even allowing Parliament to know anything about their movements. What weight can there be in such suggestions? No action can be taken now-a-days but what is at once known. Not a ship, not a regiment, scarcely even a soldier, can be ordered to leave India without its being known in England within 24 hours. In this, however, I do agree with him—that as the Crown cannot get the money to pay the troops so removed from India, and kept in Her Majesty's Dominions without coming to Parliament for the money; therefore, unless the Government can give a good reason for ordering the embarkation of the troops before obtaining the authority of Parliament to pay them, they did do an improper act—an unconstitutional act, if you will—in making the country liable to pay for them; but the mere doing it, the mere embarkation before coming to Parliament, is not unconstitutional, because that is strictly within the Prerogative of the Crown. They did intend to apply at once to Parliament for the money directly the embarkation was a fait accomplis; and at the most it would be a question of Censure of the Government for not coming first to Parliament, if they are not able to give, as they could give, and will give, at the proper time, full and satisfactory reason for this—as I said before, the greatest masterpiece of their foreign policy. By so doing, they have shown to an awestruck Aggressor the power of an united Empire, and have prevented such statesmen as the right hon. Members for Greenwich and Birmingham from weakening its effects by first showing to Europe the sorry spectacle of a nation divided against itself. I submit, Sir, that the noble Lord has failed to uphold his alleged reading of the Constitutional history of England, 431 and I maintain that the Government have broken no Constitutional law, but have done that for which they are entitled to, and ought to receive, the best thanks of a united people.
§ MR. CHILDERS
pointed out that the interpretation just put by the hon. and learned Member upon the speech of Lord Bathurst, in 1775, did not accord with the view taken of it by two Members of Parliament both of whom referred to it in the debates of the time, or with the Report of it still extant, and that a reference to the debate of 1775 would show that Serjeant Adair virtually accepted Lord Bathurt's position. Turning to the actual question before the House, he would ask them to go back to the 27th of March, when Her Majesty's Government arrived at two decisions of very great importance. In the first place, they resolved to add to the strength of the Army by 35,000 men through the operation of the Army and Militia Reserves. That decision was made under three Acts of Parliament, and was at once communicated to that House. The other decision was to add 7,000 to the Army, as a draft from the Indian Native Forces. But these 7,000 men, we were told by Lord Strathnairn in his evidence before the Indian Army Committee, were equal only to 3,500 Europeans; so that while the decision to add so large a number as 35,000 men was published to the world, the Government deliberately kept back the knowledge of its determination to bring from India the mere tenth part of that force to Malta. But, if ever there was a decision about which Parliament ought to have been immediately consulted, it was this. On no question had there been a more pronounced expression of opinion, both on the part of Members of Her Majesty's Government, and their military advisers. In 1867 there was a very important debate on the policy of bringing Indian Native troops even as far west as Abyssinia. The speeches delivered in that debate had not, as far as he was aware, been referred to in the course of the present discussion, although they well deserved the attention of hon. Members. One distinguished Member of that House spoke with great vigour in the debate, dwelling at length upon the policy of bringing troops of this particular description from India to the assistance 432 of the European Forces of Her Majesty. That Member of the House spoke of the question as having two distinct bearings. One was in reference to India, and the other was in reference to this country. He said it was a bad policy for India, because, if we had too weak, or too timid, or too facile a Governor General, India might be seriously denuded of troops for the purpose of serving European interests; but he maintained that the greatest danger was to this country, because he did not like India to be looked upon as an English barrack in Oriental seas. The Member who used those expressions in 1867 was Lord Salisbury, who, on the 27th of March last, decided that 7,000 Native troops should be brought from India, and that Parliament should not be consulted until after their arrival in Europe. Surely the House was entitled, when so great a change of policy had taken place on the part of the Ministers of the Crown, to have been promptly informed of the reason of the change. Nor was it only Lord Salisbury's opinion which had changed so suddenly. He had already referred to the Committee which, in 1867 and 1868, inquired whether to any extent it would be feasible to substitute Indian troops for European troops in the Colonies and Dependencies of the Empire. He had the honour of serving upon the Committee, of which Lord Salisbury was the Chairman. Among the military and Indian witnesses examined before that Committee, there was hardly any difference of opinion that such an operation as was now being carried on would be supremely unwise. It was true that some of them thought that under certain circumstances it might be desirable to substitute a larger number of Indian troops for the Regular Army at certain Colonial stations. It was also suggested by other witnesses of less weight, that it might be possible in certain circumstances to bring Indian Native troops as far as Malta, Gibraltar, and the Mediterranean. But all the witnesses, he believed, without exception, agreed that it would be very unwise to adopt any such measure for the first time on the eve or during the commencement of war, although some were of opinion that it might be done as a last resource in case of a desperate war. The utmost recommended by the witnesses was to substitute 433 Indian for European troops in some of the Eastern Colonies, provided the operation were commenced in time of peace and carried out gradually; because, if it were found to be inconvenient, it might be stopped without any danger to the State. He might refer to one or two of the most salient points in the evidence of some of the most valuable witnesses examined upon this question. Lord Strathnairn was afraid that any employment of Indian troops in substitution for English troops would lead to a reduction of the Army; but, if such were to be adopted, he said—I do not think that any such change would be good on the eve, or at the beginning of war.Sir G. Clerk said—I would not, under any circumstances, take a Native regiment to garrison Malta or Gibraltar, or any station in Europe.General Pears said—It would not be desirable to use Native troops at Malta or Gibraltar; but in time of war, in urgent need, a brigade or two of Sikhs might go any where.Sir Walter Elliot said—It would be very objectionable to do this first in the case of a European war.Sir Hope Grant said—I would only substitute Indian for Native troops in time of war as a last resource. Under no circumstances whatever would I send them to Malta or Gibraltar.Sir Herbert Edwardes said—My judgment is decidedly against bringing Indian troops to Europe.He was not now arguing the question, which would come before them at the proper time, whether it would be desirable, in these or any other circumstances, to introduce Native Indian troops into European garrisons in the Mediterranean; but he would say most distinctly that, after the almost unanimous evidence given before the only Committee which, as far as he was aware, had inquired into the matter, and after the speech of the responsible Secretary of State on this very question, this was the very last transaction which ought to have been kept back from the House an hour. So great a change ought not to have been left to be argued here after the event. He had listened carefully to all the speeches from the Government Benches, and he had tried to find out precisely why it was that Parliament had not been informed of the matter. The House 434 had been told that it was very desirable that there should have been secrecy, but they had not been told why. It was admitted that the delay of a fortnight had not had the slightest effect on the preparations of Russia, or obtained for us any diplomatic advantage. The only reason that had been given was, that if the information had been communicated to Parliament at an earlier date there would have been some inconvenience in taking up transports. Now, he would take on himself to say, not on his own authority, but on that of others of greater weight, that if it had been known that the Government required transports, in the present state of the shipping interest, they would have been able to obtain them at least as cheaply as had been actually effected. There never was a time at which shipping could have been had at lower rates. No doubt—he would not call them arguments—but excuses, based upon a number of legal, Constitutional, and administrative considerations, had been given for the delay. He should like to analyze the excuses of the Government. It was alleged on their part that the state of things constituted an emergency which justified them in withholding information from Parliament. But Her Majesty had Herself assigned that very emergency as a reason for coming to Parliament with information in respect to the calling out of the Reserve Forces. Therefore, the same state of things was relied upon as a reason for giving and for withholding information. The second excuse made by the Government was, that the right hon. Member for Greenwich had declared that it was the duty of the Government to take the responsibility of their actions upon themselves and afterwards to come to Parliament for their justification; but they forgot to add that his right hon. Friend said they should do so at the earliest opportunity. Instead of coming to Parliament at the earliest opportunity, the Government had not come to Parliament at all, had done nothing but answer questions, and only proposed to make a formal communication to Parliament when the Native Indian troops had actually arrived at Malta. Thus Parliament would receive no formal information with regard to the intention of Her Majesty's Government on this subject 435 until that intention had actually been carried into effect. That excuse, he would venture to say, had no weight whatever. He now came to the Constitutional and legal doctrines which had been advocated by some eminent lawyers and politicians. The powerful speech of the Attorney General had been replied to by the speech from the right hon. Member for Greenwich, which would not be forgotten in that House, and the refutation was so complete that he would not venture to travel over the ground again. The Attorney General had come before that House in the character of the boldest supporter of the Prerogative that had been known since the days of Lord Eldon, and had argued that the employment of troops in Her Majesty's Possessions other than England was not a matter dealt with by the Bill of Rights; that its language—to use his exact words—did not extend beyond the Kingdom of England; and that the Mutiny Acts enacted nothing on the subject beyond the United Kingdom; so that the only function of Parliament with respect to troops in British Possessions was voting their cost. The hon. and learned Gentleman contended that the sole object of the Bill of Rights was to prevent Parliament and its Members being overawed, and this, it was evident, would not be occasioned by any number of troops kept in other Possessions of the Crown. The Attorney General and the hon. Gentleman the Under Secretary of State for India had both based their arguments on the 4th section of the Mutiny Act, which looked at first as if it had some bearing on the question, as contemplating the existence of a Colonial Army. He had with some pains traced the history of this clause, which was inserted during the American Wars, above a century ago, with the sole object of providing that where American Militia were brigaded with the King's troops, under a King's officer for service in the field, they should be subject then, and no longer, to the same military discipline. The Preamble to the clause up to 1810 was fatal to the Attorney General's argument. Again, it was argued that the Indian troops were not the only Army which Her Majesty could employ without having the consent of Parliament, but that there were also Colonial 436 Armies that could be so employed. The hon. and learned Gentleman the Attorney General had argued that those different Forces were all Queen's troops, and that the Queen was empowered to employ them just as the Indian troops were now being employed. All he could say was that the existence of such troops was entirely unknown to Parliament, the only Return of troops in the Colonies describing those locally raised as Militia. They were told, however, that if they did not exist, they might, and probably soon would; that Canada would soon raise an Army, which would then be at the disposal of Her Majesty, in the same way as the Indian troops were at present. He should like to ask this question—If Canada did raise that Army, under what Act would it be raised? Was there any pretence that the Canadian Legislature could pass any Act exercising authority over troops outside the Canadian boundary? There was no such provision in the Constitution Acts of Canada, of Australia, or of any Colony, enabling them to do more than to raise troops in the nature of Militia for home defence—in fact, to do more than establish a superior police force, engaged under ordinary civil contract. But the Indian Native Forces were raised under an Imperial Statute, which gave effect to their Articles of War, not only in India, but wherever they went. It was idle to contend that this imaginary Colonial Force—the Attorney General's dozen men in buckram—were any justification for the ground which had been taken up with respect to the Indian troops. But it was then said that the Committee of 1867–8 had not referred to the Constitutional point when they discussed the use of Indian troops in the Colonies. No doubt, and for the best of reasons; for the point had been settled by the rule then in force, under which Indian troops in the Colonies were voted, just as British troops were, both as to numbers and pay. Then the Attorney General said that in 1863 some Indian troops were sent to New Zealand, and not specifically voted. Here, again, he was wrong; for, although there was a proposal to send them, they were not sent, but British troops leaving India in the ordinary roster were despatched to New Zealand instead of to other Colonies, and the numbers in the Preamble 437 to the Mutiny Act were not affected.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
observed that he had said that the troops sent forward were on the Indian Establishment and under the Mutiny Act.
§ MR. CHILDERS
said, that made no difference, because European troops in India were always under the Mutiny Act. As to the particular troops referred to, they were paid out of and came within the Votes of Parliament. They could not expect the Attorney General to be conversant with all that occurred at the War Office 15 years ago; but he must not quote this case again in illustration of his argument. The Attorney General had also stated that the changes made by the House of Lords in the clause of the Bill of 1858 had effected the object of its original Mover. But, unfortunately, if he referred to the debate, he would find that the amended clause was opposed exactly on the same grounds as the original words. The fact was that, although there was some hesitation in 1861 and 1862 to yield to General Peel's protests, in 1863 the cost of Indian troops was separately shown. In the following year the numbers were shown on the Estimates; and since 1865 the number of Indian troops employed out of India, in spite of all the Attorney General had said, had been as regularly voted by Parliament as had been the numbers of troops of the Regular Army. This House had distinctly laid down that it was not sufficient to vote the money, and that when Indian troops were employed outside the boundaries of our possessions in India, the number must also be voted. As the Government claimed to send Native troops from India to Malta without the consent of Parliament, he would ask, whether they also claimed to send European troops from India in excess of the voted numbers? Did they also claim to substitute in India a small number of European troops for a larger number of Native troops moved from India into British Possessions, and not to come to Parliament at all if the latter cost no more than the former? These were questions which the Government were bound to answer. If the law would allow them to do this, the sooner they had a fresh Declaration of Rights the better, for the position was 438 a perilous one, the gravity of which was not diminished by the smallness of the numbers in question. It was by laxity in small matters that dangerous precedents were established, and it was to prevent such a precedent that he hoped the House would accept the Resolution of his noble Friend.
§ MR. ASSHETON CROSS moved the adjournment of the debate.
§ Motion agreed to.
§ Debate further adjourned till Thursday.