HL Deb 31 July 1871 vol 208 cc454-542

Order of the Day for the Second Reading, read.


said, he had found it would be more convenient to the noble Duke (the Duke of Richmond), while it would be quite as convenient or more so to the Government, if the noble Duke's Motion took precedence of the Motion for the second reading of the Army Regulation Bill, on the understanding that as soon as that Motion was disposed of his noble Friend the Under Secretary for War would proceed with the Bill.


then rose to move the following Motion:— That this House before assenting to the Second Reading of the Army Regulation Bill desires to express its opinion that the interposition of the Executive during the progress of a measure submitted to Parliament by Her Majesty in order to attain by the exercise of the Prerogative and without the aid of Parliament the principal object included in that measure is calculated to depreciate and neutralize the independent action of the Legislature, and is strongly to be condemned. The noble Duke said: My Lords, I think the course proposed by my noble Friend (Earl Granville) is the most convenient one that under the present circumstances it was possible to take, because after my proposition has been disposed of as a substantive Motion, the second reading of the Bill can be proposed and dealt with in any manner your Lordships may think fit. The importance, my Lords, of the present crisis can scarcely be over-estimated. I doubt, indeed, whether the announcement made to us by my noble Friend ten days ago, that Her Majesty had that morning signed a Royal Warrant abolishing the purchase system has ever been paralleled within the Parliamentary history of this country, either for the importance of the course pursued on the question, or the amount of interest excited in pursuing such a course. I feel that while a grave responsibility rests upon noble Lords on both sides to maintain the honour and dignity of this House, no small responsibility falls upon my shoulders—representing, as I do, a very large body of noble Lords on this side—that the course we take, while maintaining that honour and dignity, shall not aggravate the difficulties of the situation in which we are placed. We should, at the same time, take care to allow nothing to occur, as far as we are able to prevent it, which shall endanger or sacrifice the independent character of this House. Now, in order that we may discuss properly the subject-matter which I wish to bring under your Lordships' notice it is not my intention to enter into the merits or demerits of the so-called Army Regulation Bill, for it was dealt with in a most exhaustive manner by both sides of the House on a previous occasion; and I shall confine my remarks as much as possible to the state of things which has now arisen in consequence of the exercise of the Royal Prerogative, studying brevity to the utmost of my power, it being very desirable that this debate, in which a number of noble Lords are anxious to take part, should close tonight. Your Lordships will recollect that matters connected with the organization of the Army were brought under the consideration of Parliament by Her Majesty in her most gracious Speech from the Throne. A Bill was accordingly introduced into the other House, and passed after very considerable discussion, differences of opinion being entertained by hon. Members on both sides, and the Amendments proposed proceeding as much from those on the Government side as from those on the opposite. It was then brought up to your Lordships, and on the second reading I moved a Resolution, the effect of which was, as your Lordships will recollect, not that you declined to entertain the subject-matter of the Bill, but that you wished before you further discussed it to be furnished with information on various points which you thought necessary to enable you to come to a conclusion on the measure. So far, indeed, was that Resolution, which was carried by a majority of your Lordships, from destroying the Bill, that in the Votes of the following day you will find it among the measures remaining for a second reading. Now, I imagined that the object of the Bill was to obtain the sanction of Parliament for its provisions, as distinguished from other parts of the system of Army organization which were in the power of the Executive. When dealing, indeed, with what ought to be in it, we were taken to task by the noble Duke the Secretary of State for India (the Duke of Argyll), who, in the forcible and vigorous manner for which he is remarkable, said— The law and Constitution of this country place the discipline and organization of the Army in the hands of the Crown… Although the Resolution is vague, the speech of the noble Duke left nothing vague. He told us distinctly the plan of the Government must be embodied in the Bill. I venture to affirm, on the contrary, that this is unconstitutional. It is the duty of the Government, I fully admit, to give every explanation to Parliament of the plan which they have for the re-organization of the Army; but it is equally the duty of the Government, which they will discharge, to defend the Prerogative of the Crown. According, therefore, to the noble Duke, it is not proper to insert in an Act of Parliament that which it is in the power of the Crown to do without an Act, and it would not have been proper or constitutional on that account to put in the Bill what we desired. Surely, however, it was equally unconstitutional to put into the Bill that which was clearly in the power of the Crown, for by a recent act of the Crown that portion of the Bill has been taken entirely out of our hands? Her Majesty's Government have therefore been, to a certain extent, unconstitutional and inconsistent in their conduct on this occasion. If they thought it necessary that this scheme should be inserted in the measure laid before Parliament, it ought to have remained there; whereas the Government, finding not that we were unwilling to deal with the question, not that we declined to discuss it, not even that we postponed it till another Session, but that we desired information on the subject, came forward and said—"Because you will not pass the Bill so quickly as we think you ought, we shall advise the Crown to exercise its Prerogative and take that portion of it out of your hands." I think I am certainly justified in saying that they have changed their minds on the subject, and are now dealing with it in a different way from what they did before. I was anxious to see the views of the Government as expressed at a recent festive meeting, and I find the right hon. Gentleman at the head of the Government using these words— We are in a manner put upon trial for our lives. A Notice has been given—which is still only a Notice — that on Monday the severest punishment a branch of the Legislature can inflict will, I do not say be inflicted, but will be proposed to be inflicted upon us in the House of Lords—in that august Assembly which I trust may long continue to discharge with wisdom its important and essential functions in the Constitution of the country. Then he continues— My Lord Mayor, with the opinion which I entertain of that august Assembly, I am unable to believe that they will censure the Government, which pleads guilty to no offence but this— and observe what they plead guilty to— That we have used a legal power for the suppression of an illegal practice. A system of gross, notorious, and palpable illegality we have, in the exercise of our undoubted power, put an end to in the only manner which remained open to us after the circumstances which have occurred."—[The Times, July 31.] But if the Government have now dealt with the question in a legal manner, why did they not so deal with it six months ago? I defy the right hon. Gentleman to point out that they are dealing altogether with what can be called an illegal practice. In saying that they are dealing with an illegal and immoral practice, the right hon. Gentleman has mixed up the regulation prices, which are perfectly legal, with the over-regulation prices, which have been winked at for some time. If, then, that is the legal mode of dealing with the question of purchase, the Government ought to have dealt with it in a legal and proper manner in the first instance. They ought not to have put the subject of purchase into a Bill, and when your Lordships did not endorse their opinion then say, as if by way of punishment—"You are not fit to deal with this subject, and we will take it altogether out of your hands, because you do not deal with it in the manner which we wish." My Lords, I have also the opinion here of my noble and learned Friend upon the Woolsack, who expresses some views which do not coincide with my own. He said— We have, as my right hon. Friend the Prime Minister has stated, a Motion of Censure in the House of Lords impending over us; and I cannot sit down without saying that I do not believe any man in the whole country seriously in his heart believes that there ever was any intention or desire on the part of any Member of Her Majesty's Government, to act otherwise than harmoniously with the Upper branch of the Legislature. Now, if that is his idea of acting harmoniously with us, defend me from the legal acceptation of the term. If a man whom I meet in the street kicks me, it is presumptive evidence in my mind that he does not wish to act harmoniously; at all events, it leaves the impression that he intended an insult; and though what the Government intended I will not pretend to say, they certainly have not acted in a harmonious manner towards us. The noble and learned Lord went on to say— But, on the other hand, I must say that, under the guidance of my right hon. Friend the Prime Minister, and on the part of all of us who occupy posts in the Government, I think I may also say we do not intend—we do not dare, where there is any measure which in our judgment affects the welfare and very safety of the country, and where that measure has been supported by the voice of the country, through their Representatives—we do not dare to refrain from the exercise of any constitutional power which is placed in our hands to give to the desire of the country its due effect. … I do not for one moment desire any violent change in any of these three powers, but I do desire that we shall have a free and fair exercise of them, without that exercise being called in question as an act of violence or insult."—[Ibid.] Now, as to the voice of the country, I deny that this question has ever been put to the country; and as to its being a constitutional power, why, if it was so, did they not make use of it before? With regard to a free and fair exercise of our constitutional powers, that is precisely what I ask, and because this has not been afforded us is one of my reasons for proposing this Motion. Now, I wish to say a few words with respect to it, and as it is very desirable that this debate should close this evening, I will confine my remarks as much as possible to the point at issue. As to the Royal Warrant, my noble Friend (Earl Granville) told us on a previous occasion that it was not an exercise of the Royal Prerogative, but of a statutory power. I join issue with him on that point, and I wish to guard myself against anything that I may say being deemed in any way disrespectful or disloyal to the Sovereign. All my remarks will be directed against the advice given to the Sovereign by the Executive. I think I shall satisfy my noble Friend—at any rate I will endeavour to do so—that this is an exercise of the Royal Prerogative pure and simple, and that it is not the exercise of power under statute. The system of purchase, as your Lordships are aware, has existed for a considerable time. I believe it existed in the reign of Charles II.; that William III. abolished it for a season by Royal Warrant, without an Act of Parliament; that clauses were introduced into the Mutiny Act declaring it illegal; but that from 1700 those clauses were abandoned, since which date it was, until 1809, sanctioned by the Crown. Regulations were made from time to time as to the prices of commissions, the Crown being advised by general officers as to the prices which ought to be fixed, and the whole system, was, in fact, sanctioned by the Crown. In 1809 an Act was passed to prevent the purchase or sale of all offices, and it no doubt occurred to these who framed it that, unless a saving clause was inserted, the Act would apply to the sale of commissions in the Army. The 7th section consequently excepted from the penalties of the Act the purchase and sale of commissions in the Army at prices regulated by the Crown. That section, however, which is recited in the Warrant, has nothing whatever to do with the power of abolishing purchase. It simply says that those who continue to buy and sell commissions under Warrants anterior to the Act and under the sanction of the Crown shall not be subject to the penalties of the Act. It had nothing, therefore, to do with originating or maintaining the purchase system, and it gave no power to the Crown which it did not possess before. It recognized the right of the Sovereign to make regulations as to the purchase and sale of commissions; but it neither conferred nor took away any power of the Crown. It indirectly acknowledged the Prerogative of the Crown, as the head of the Army, to grant commissions in the Army; but it neither strengthened nor weakened the power of the Crown; and had that Act been repealed at any time during the last 60 years it is clear that purchase would have gone on exactly as before. That section was the only part of the Act that my noble Friend, could have had in his mind; when he spoke of proceeding under statute, so that if I am right in my construction of it, the Crown has abolished purchase by an exercise of the Prerogative, without any reference to an Act of Parliament. The Warrant is, therefore, improperly worded, for the recital of the Acts 5 & 6 Edward VI. and 49 George III. forbidding the sale of offices, is mere surplus-age, having nothing to do with the subsequent words which, starting an altogether new subject, put an end to the purchase system. I want now to put distinctly to my noble Friend a question which I have no doubt he will answer, and to which I think this House is entitled to have a reply. My question is this—What was the Crown advised in regard to the issue of this Royal Warrant. The Royal Warrant bears date the 20th of July. That was on Thursday week; and on the Thursday night my noble Friend told us that the Sovereign had signed a Warrant on that day; and when I asked him whether that was by the exercise of the Royal Prerogative, or in virtue of any other power, he stated that it was under statute. Now I want to know, was the Crown advised that the Crown was acting under statute? Was the Crown advised that the Crown was acting in accordance with the Royal Prerogative pure and simple? Because I say that if the Crown was advised that the Crown was acting under statute, the Crown was improperly advised, and the signature of the Crown was obtained under circumstances which were not in accordance with the facts of the case. I shall be very much surprised if any noble Lord, legal or otherwise, will venture to assert and carry it to a proof that the Royal Warrant was signed under any other power than the exercise of the Royal Prerogative. My Lords, without wishing to take from the power of the Royal Prerogative, I cannot but think that on the present occasion the power so exercised has been very much strained. No doubt the Crown, under Royal Warrant, can institute a system of purchase; but with that system, as we have been told by the noble Lord opposite (Lord Northbrook) has grown up a vast network of vested interests; and setting aside for the moment over-regulation prices, of which most people entertain the idea that they should be paid, there can be no doubt that for the regulation prices it is right and proper that the officers should be indemnified. But while the Crown can set up these vested interests, the Crown cannot get rid of them. The proof of that is to be found in the fact that although you have abolished purchase, you cannot by Royal Warrant abolish everything which that system has created, and in order to indemnify the officers you must obtain the sanction of Parliament. It is therefore a stretch of the Prerogative to abolish what it has built up, unless it can carry this out entirely without the assistance of Parliament. If, moreover, it was thought at the commencement of the Session that the power of the Prerogative was not strong enough to abolish purchase, and that it was expedient to deal with it by Act of Parliament, what has happened to make the Prerogative stronger to-day than it was then, and to make it inexpedient to effect now by Act of Parliament what was expedient then? Another objection to this exercise of the Prerogative is, that it affects the independence and deliberative character of this House. It must originally have been deemed necessary to take the opinion of your Lordships—indeed, the Crown, in the Speech from the Throne, told us our advice and counsel would be asked. Our advice has accordingly been asked, and while the matter placed under our consideration by Her Majesty is at this moment sub judice—for as long as the Bill is not out of the House its second reading may be moved toties quoties—Her Majesty is suddenly advised by the Executive to take the whole subject out of our consideration, and give us no opportunity of again dealing with it. I am not going to enter deeply into the legal question, but it does not require a very learned reader to know that, according to Blackstone, the Crown, while it can veto a measure, has no power of resolving that anything shall become legal. Therefore, the practical effect of what has been done is this—we declined to deal with the subject of purchase as embodied in the Bill in its present form, but by an exercise of the Prerogative the Crown has taken the matter out of our consideration, compelling us, whether we will or not, to pass another Act compensating the officers, for everybody admits the justice of compensating them, and that cannot be done without an Act of Parliament. By a Royal Warrant and a vote of the House of Commons we are compelled to pass a Bill which we should not under other circumstances have been desirous of doing. That is clearly a distinct interference with our legislative functions, and I shall be very much surprised if anyone should get up on the other side of the House, and deny the facts. I am forced to ask the question, are we a deliberative Assembly or not? Are questions of this kind to be brought before us, and are we to give our independent opinions, or is it reduced to this—that we are to give our opinion only when it coincides with the views of the Government? I apprehend that had we passed the Bill we should have heard nothing of a Royal Warrant, and the Prime Minister virtually tells us—"We will put this Bill before you, and if you come to a conclusion that we can endorse we shall be satisfied; but we intend to pass the Bill, and if your opinion is opposed to us we shall resort to the strongest stretch of the Prerogative which can be imagined, and take the whole thing completely out of your hands." That being the position of the matter, it became our duty to consider what course we should take. No doubt we might oppose the second reading on its being again moved; but, inasmuch as the main provisions of the Bill, the abolition of purchase, is taken out of it, I do not think that that would be a dignified course. Had we negatived the second reading, and had purchase been abolished by Royal Warrant, another Bill would necessarily have been introduced for the purpose of compensating the officers, which would have had to pass through its various stages in both Houses, and at this period of the Session it would have been very undesirable to re-open a question involving much bitterness and acrimony. I do not, therefore, think it expedient or right to propose the rejection of the Bill. Again, we might, acknowledging our defeat, assent to the second reading and maintain a dignified silence, satisfied that defeats caused by conscientious convictions on the one hand, and the high-handed acts of the Government on the other, are more creditable and honourable to the vanquished than to the victors. Consistently, however, with the maintenance of the dignity of this House, I do not think that course would be a wise one. The only course, and, as I think, the best course, left is that, while, or rather before, assenting to the second reading of the Bill, we should enter on our Minutes a Protest, couched, I hope, in as strong, but at the same time as decorous, language as Parliamentary usage will allow. We shall enter our protest against the conduct of the Government, against proceedings which render all discussion subject to the sic volo, sic jubeo, of an imperious Minister; and, in accordance with that decision, I beg to move the Resolution of which I have given Notice.

Moved, That this House before assenting to the Second Reading of the Army Regulation Bill desires to express its opinion that the interposition of the Executive during the progress of a measure submitted to Parliament by Her Majesty in order to attain by the exercise of the Prerogative and without the aid of Parliament the principal object included in that measure is calculated to depreciate and neutralize the independent action of the Legislature, and is strongly to be condemned.—(The Duke of Richmond.)


My Lords, I am not surprised that your Lordships should have greeted with cheers the speech in which my noble Friend (the Duke of Richmond), in his easy and agreeable manner, has so very clearly stated the grounds which have induced him to decide on the course embodied in the very grave Resolution which he has just moved. I was certainly glad to recognize in that speech, as some of its brightest gems, three excellent extracts from speeches of three of my Colleagues, two of which were made on a recent festive occasion. Following my noble Friend's example, I will not again discuss the question which, I quite agree with him, was exhaustively discussed during three nights' debate — namely, the abstract merits of continuing that system of purchase, which its opponents say is bad in practice, and which its friends admit is wrong in theory, whatever that may mean. I must go a little further back than my noble Friend in his history of the Parliamentary proceedings on this subject. I will go back as far as last year, when the question of purchase had arrived at a point at which we believed it would have been difficult for a Government, even if willing, to abstain from touching it. At that time it was a matter of general notoriety that there was a system of over-regulation prices with regard to the purchase of commissions, but the Government had no official knowledge of the fact, and in order to procure that official information they appointed a strong Commission to investigate the matter. The principal point of their Report was that these over-regulation prices, with some few exceptions, were almost invariably the practice in the Army; that there had been a tacit acquiescence in that illegal system by the military and civil authorities; and they pointed out the remarkable fact that nearly all the officers under the rank of major general in the British Army were in the constant and systematic violation of the law upon that particular subject. In addition, the Commission argued, in a manner which I have heard no attempt to controvert, that it was impossible to deal with these over-regulation prices as long as the sale and purchase of commissions was sanctioned. The responsibility of the Government was great, and they did not shrink from it. My noble Friend asks why, if there was a power of abolishing purchase by Warrant, we did not exercise it at the beginning of the year? Does he really ask that question in perfect good faith? Is it possible your Lordships can doubt what the object of the Government was? The illustrious Duke (the Duke of Cambridge) said one of his chief objections to the abolition of purchase, was the impossibility, as he up to a very short time ago had thought it, of the House of Commons securing that compensation which he thought just and liberal to the officers. That was not merely the illustrious Duke's opinion, for in successive Cabinets I have heard the question raised, where all were agreed that the system was indefensible, but thought the practical difficulty of the House of Commons giving so large a sum was one not to be lightly disposed of. Does my noble Friend really think that the most judicious way of settling this great and difficult question would have been to abolish the system by Royal Warrant before taking the opinion of the House of Commons, which would have had to vote these compensations? The Government wished to abolish purchase; but they wished concurrently with it to get a Parliamentary sanction for a legal and a pecuniary indemnity for the officers who had been violating the law, though under a system which involved no moral turpitude on their parts. That intention of the Government was fully stated. My noble Friend has alluded to the opposition offered to the Bill in "another place." No doubt there was constant and protracted opposition, on grounds which I am glad to say this House, in three nights' debate, entirely declined to entertain; and there was, further, an unwillingness even on the part of some of our Friends—to which my noble Friend has alluded—in consequence, but not of opposition to the objects of the Bill, of some discontent with the large military expenditure which Her Majesty's Government, on their own responsibility, had recommended to Parliament. With regard, however, to this just and liberal compensation to the officers, the great majority of the House of Commons cheerfully assented to that outlay, sending up a Bill the principal object of which, as explained both in that House and here, was not to abolish purchase—which we had a power to do, as stated at the beginning of the debate in my noble Friend's (Lord Northbrook's) able speech—but to procure that pecuniary and legal indemnity for the officers to which I have just alluded. My noble Friend described the course which the Opposition, commanding that enormous majority which it undoubtedly did on the consideration of the question, thought fit to pursue on the second reading. He proposed, and other noble Lords supported, a Resolution which was characterized in words read by my noble Friend, and to which I could see no objection, although it was denounced by my noble Friend (Lord Northbrook) as of an unconstitutional character, particularly as it was interpreted by the noble Earl opposite (the Earl of Carnarvon), who said that it was impossible to rely on the promises of the Government in regard to a matter which up to that time had always been under the control of the Crown, and not under that of Parliament, unless the promise itself was embodied in the Act. My noble Friend did not, I think, quote those words for the purpose of impugning them, but for the purpose of charging us with inconsistency—one of the most extraordinary charges I ever heard. He virtually said—"If you can do a thing by Royal Prerogative, you must necessarily, by your own confession, be doing wrong when you attempt to do it by Act of Parliament. The distinction seems to have escaped him in the difference between the Houses of Parliament trying to encroach on the Prerogative of the Crown, and the Crown willingly allowing matters relating to the Prerogative to be embodied and confirmed in an Act of Parliament. He asked me for an answer, and I think I have satisfactorily given one. That Resolution having been passed, I am bound to say Her Majesty's Government found themselves in a position of considerable embarrassment, although not in such great embarrassment as if there had been several courses to adopt, for I believe we adopted, not merely the best, but the only one. My noble Friend insinuates—and I heard for the first time the slightest hint of it—that the Resolution passed by a very large attendance of Peers towards the end of July, interfering with the second reading of the Bill, was not intended to delay the passing of this measure for more than one Session, or even possibly for this Session. Now, it was impossible for the Government to entertain the slightest suspicion, without some hint from him or his Colleagues, that that was their intention. We did all that we possibly could to effect a settlement of the subject. We used every argument we knew of against the abstract disadvantages of purchase. We pointed out the particular circumstances which made a settlement of the question not only important, but urgent. We quoted the words of Sir George Grey, which have never been questioned, and which were immediately concurred in both by the right hon. Gentleman at the head of the Government and the right hon. Gentleman the Secretary of State for War, and which were alluded to and enforced by Members of the Government in this House—as to the duty of the Government not to continue supporting an existing state of things, which even the noble Earl opposite admits they had the power to remove. How could we possibly imagine that after your remonstrances about asking your attention to such important subjects at so late a period of the Session, and your desire for further information, without any new argument, any change of circumstances, or any new fact, we could ask your Lordships at a late period of the Session to cancel what you had previously decided? It would have been a great impertinence, which would, I believe, have been rebuked by the contempt which such a proposal would have deserved. What were the other courses. It has been suggested that an Address to the Crown should have been moved in the other House. Now, I have no doubt it would have been satisfactory to our amour propre to receive such an application from the other House, and I have no doubt that had we made such an appeal it would have been successful; but what would have been the practical result. Why, putting aside the crowded state of business, we should have gained strength in a House where we do not require it, and should not have gained strength where we are so lamentably deficient of it as we are in this House. There is also the objection—which I, for one, feel in the strongest manner—that the result would have certainly been to aggravate the difference which had unfortunately sprung up between the two Houses. I presume nobody could think that after public opinion on the matter, and after the decision of the House of Commons, we could raise the regulation to the standard of over-regulation prices. There was one other course, which was to do nothing; without the slightest regard to our duty to our Sovereign, to the House of Commons, to the country, and to the Army, to have allowed matters to go on till next Session, or some indefinite time when your Lordships might choose to change your opinion on the question of purchase. My noble Friend (the Duke of Richmond) suggested a General Election to ascertain the views of the constituencies; but the noble Earl opposite (the Earl of Carnarvon), who, with the noble Marquess beside him (the Marquess of Salisbury), claims a higher Conservatism than the ordinary Members of the party—though I think the more commonplace Conservatism is better fitted to deal with the ordinary affairs of this life than the more transcendental one—urged, in proof that the country was not in favour of the abolition of purchase, that there had been no public meetings, or only one. Now, it so happened that the very morning after the noble Earl made that declaration I read the report of a large meeting in Yorkshire on the subject of this Bill, and that meeting, though in favour of the abolition of purchase, denounced as an act of gross injustice the proposal to take money out of the taxes levied on the poor for the purpose of granting an indemnification for an illegal practice. Would it have been Conservative on the part of the Government to have postponed the question in order to have meetings held throughout the country advocating the abolition of purchase on principles of that sort? Would it have been fair to the Army? The Resolution passed by your Lordships had already paralyzed the sale and purchase of commissions. Was it desirable that the Government should leave the Army in a state of alarm and uncertainty—a state which, according to an eminent officer, would tend to disorganize and hurt the discipline of the Army, of which we are so proud? Would it have been right for us to postpone indefinitely a change which we thought absolutely necessary for the re-organization of our military forces, and thus put off a work which we had so great a responsibility to perform? My Lords, I cannot imagine your Lordships think that would have been a right course. Well, under those circumstances, we took a course which we believe to be strictly legal and constitutional; and we took it with the previously obtained sanction of the House of Commons in gard to the necessary expenditure, which made it perfectly certain that that House would have consented to vote compensation, at all events, for the regulation prices; and because we were morally certain that under the changed circumstances, with the responsibility for the abolition of purchase shifted from your shoulders on to those of the Government and the House of Commons, you would, with your well-known public spirit and sense of justice, scarcely refuse to give a second reading to a Bill, the original and main object of which was to provide a legal pecuniary compensation to officers in the Army. That course, which under the circumstances of the case we believe to be strictly just to all parties concerned, we have taken. It is now, however, proposed to precede the consideration of the Bill by a Vote of Censure on the Government for taking the one step they conscientiously believed to be the only, and the correct one, they could pursue. Some persons have thought that as that vote is not likely to lead to any practical result, it might be totally disregarded. My Lords, I differ entirely from that view, and I am bound to admit that if in such an Assembly as this you came calmly and temperately to the determination to censure the Government, without any feelings in regard to a recent affront which has been supposed to be put upon you—even, if in my conscience I thought my Colleagues and myself had done nothing for which we could justly reproach ourselves—the censure of your Lordships' House would, at all events on me, fall with great weight. But when I have some grounds for thinking that these conditions are not all fulfilled, your Lordships will allow me to say that that circumstance takes away somewhat from the sting your censure might otherwise have conveyed. My noble Friend talked of these proceedings as necessary for the dignity of this House. I have great doubt whether what has occurred up to the present has added to the dignity of this House. Last Thursday week it was agreed in private that the Government were to seek to obtain a second reading of their Bill on the Monday following. But the next day I was requested to postpone the adjournment in order to give time to my noble Friend to return to the House to state his views on the state of affairs. He did return to the House, and asked that the question should be adjourned for ten days in order to allow of certain engagements being kept. I do not say so; but by others it was supposed that the time was necessary for distributing certain missives through the post for Ireland and Scotland. My noble Friend then gave a Notice of Motion which was mixed up with the Bill, and six days afterwards the noble and learned Lord (Lord Cairns) came down, at the request of my noble Friend, and put forward a Motion, changed both as to matter and Parliamentary form. There never was a more hasty Motion than that, and it would have placed the official Members of this House in the position of the witness in the legal Joe Miller, who was asked by counsel—"Answer me—yes or no, are you continuing to beat your wife?" You have taken from it the objection in point of Parliamentary form, and you have also taken from it a matter of some importance—namely, the reason given for passing the second reading, that the compensation to which the officers in the Army are entitled might be secured to them. I think your Lordships have a right to know why that statement was inserted in the Resolution first given Notice of, and why it is omitted in the present Resolution. Is the Resolution submitted to us now couched in the strongest language consistent with decorum. If I might venture to give an opinion, I should say that there was seldom a Resolution brought before your Lordships so inaccurate in regard to facts and so ill-worded as the present one. The Motion begins— That this House before assenting to the Second Reading of the Army Regulation Bill desires to express its opinion that the interposition of the Executive during the progress of a measure submitted to Parliament by Her Majesty. Now, it may seem a small criticism, but I ask what is meant by the "Executive?" Does my noble Friend mean it to apply to the Head of the State, or the Executive Government. It has been laid down by a literary and Conservative statesman that Executive is an adjective and not a substantive, but that our American cousins had made it a substantive and applied it to the Head of the State. I suppose, however, my noble Friend means to allude to the Executive Government. The Motion next speaks of a measure submitted to Parliament by Her Majesty, although I know not why, for the fact is, Her Majesty never does submit measures to Parliament. Then, again, what is the meaning of "interposing?" I have read in poetry of a goddess interposing in favour of some hero whom she wished to aid, and I have heard of a magistrate interposing when he desired to prevent a duel. I am also aware that the right hon. Gentleman the Speaker of the House of Commons interposes most usefully to prevent a disorderly debate; but how the Executive Government can at any time interpose with the progress of a measure in Parliament, except by dissolution or prorogation, I am at a loss to understand, and still more in the present case, as the progress of the measure was not stopped by our interposition, but by an Amendment, which we consider irregular, if not unconstitutional, and which, at all events, received no support from us. The Motion goes on to say—"in order to attain by the exercise of the Prerogative and without the aid of Parliament the principal object," &c. Now I deny that the course advised by the Government is a mere naked exercise of the Prerogative, or that my noble Friend has given reasons for considering it so, and I confess I am unable to follow my noble Friend's reasoning with respect to the Statute of George III. There is no doubt that the power was inherent in the Prerogative before that Act was passed, but will my noble Friend assert that you do not have a much greater authority when a portion of the Prerogative is defined and embodied in an Act of Parliament, in the passing of which the three branches of the Legislature have concurred? Nothing can be clearer than that the only object of the Act of Parliament was to attach penalties to the sale and purchase of commissions in the Army, though an exception was made from those penalties with respect to any transactions under any Warrant passed or to be passed by the Crown. My noble Friend has denied that the Crown can exercise these rights; but will he, or will any other noble Lord, tell me how it is that the Crown has dealt with these rights in more than one instance under an Act of Parliament? I have a list of all the Warrants affecting purchase in the Army which have been issued. The first was issued in 1783, and there were 13 other Warrants issued previous to the time of the passing of the Act of 1809, by which changes of all sorts were made, sometimes purchase being abolished, and sometimes the prices of commissions being changed. But what has occurred since the Act of 1809? In 1821 there was a Royal Warrant, and in 1823 another. The Duke of Wellington, who is no mean authority upon this point, made an arrangement by which to limit the time during which he sanctioned the purchase and sale of commissions in non-purchase regiments, and at the expiration of that time there was to be an end of the permission. Surely that entirely disposes of the objections now raised. But what do I find later on? Eighteen years ago a Royal Warrant was issued, abolishing purchase above the rank of captain and lieutenant colonel in the Foot Guards. If a Royal Warrant could abolish purchase for certain ranks in the Guards, could it not do the same thing in regard to regiments of the Line, and if it could do that, is it impossible for the Crown to go lower down, and abolish purchase in reference to commissions below the rank of captain? There is one case which is still more strong, and which occurred so recently as 1861, when the Order of Her Majesty abolished purchase among the Gentlemen-at-Arms and Yeomen of the Guard. It is true that these persons are old soldiers, who are more required for purposes of pomp than for purposes of defence; but they form a part of the military forces to which the Mutiny Act applies, and their position in regard to purchase is essentially the same as that of any Line regiment of Her Majesty's service. It is hardly necessary for me to refer to what was done by Sir John Pakington, who obtained the sanction of Her Majesty to abolish the rank of cornet and ensign, though that measure was given up by the right hon. Gentleman's successor in consequence of the opposition met with in attempting to carry it out. Indeed, the question whether commissions should or should not be sold has always been left to the discretion of the Crown, and sometimes that permission to sell has not been granted, when it has been considered that the circumstances of the case justified the authorities in adopting such a course. Under these circumstances, I am at a loss to see how my noble Friend can make out that the present Royal Warrant puts the slightest restriction on the Prerogative. I ask your Lordships whether my noble Friend has made out a case for provoking or perpetuating a difference with the other House of Parliament. I therefore deny that there is anything wrong in the course taken by Her Majesty's Government, which, I believe, is the only course they could have adopted in justice to the Army and to themselves, in order to settle a great and difficult question. I ventured the other day to advert to the course of policy adopted by the Duke of Wellington at a time when this House had recovered greater weight and authority than it had possessed for many years previously. That policy consisted in avoiding as much as possible any difficulties between this and the other House of Parliament, and resolving only to strike when the blow would fall with great effect. I will now venture, in pursuance of that opinion of the Duke of Wellington, to mention two instances which appear to have special reference to certain questions which your Lordships have now to decide; one of those questions being the second reading of this Bill, and the other being the Vote of Censure which it is now proposed to pass upon the Government. Your Lordships may remember that some years ago a great change took place in the enlistment of soldiers in the Army, and instead of being enlisted for life, they were enlisted for the shorter period of 20 years. The Duke of Wellington was strongly opposed to the contemplated change; but when it was decided upon by the Government of the day, and supported by the opinion of the House of Commons, who passed it, the strongest support was given to it by the noble Duke, both by his speech and by his vote. Is not that some indication of the course he would have been likely to take with regard to this Bill? With regard to the second point, a friend of mine told me that at that time a Petition was placed in his hands against the Government which was then in power. He knew that the same Petition had been handed to the Duke of Wellington, and he went to the noble Duke saying— "Here is a strong and damaging case against the Government; if you will present an Address in the House of Lords, I will do the same in the House of Commons." But what was the noble Duke's answer? He said—"What will be the result of such a course? What object is to be gained by marking the difference which exists between the two Houses? I should be certain to carry my Motion in the House of Lords, and you would be perfectly certain to lose yours in the House of Commons. We should gain no practical object by that; but we should do what we had better avoid—mark and point out the difference that exists between the two Houses of Parliament." Under these circumstances, then, I ask your Lordships to consider whether it is not possible that your vote to-night may appear to the public, and to the poorer and uneducated classes, as an opinion deliberately set forward by the majority of this, the more Conservative portion of the Legislature, that there is no great evil in the habitual violation of the law which has been inquired into by a Royal Commission, and officially denounced; that there is no great evil in the authorities, after such an announcement, conniving at such a violation of the law; and that it is the opinion of this House that it is criminal on the part of Her Majesty's Government to take advantage of a power, which I maintain is both legal and constitutional, for putting an end, at the earliest moment, to so great a scandal? Would not such a course, in the language of your own Resolution, go far to "depreciate and neutralize" the Queen's Government, who are responsible for the great and national task of re-organizing the Army, and that at a time when you have no present intention of displacing them from the responsible position which they occupy? My Lords, knowing the very large majority of your Lordships who are against me in opinion, I am obliged to you for the indulgence with which you have treated me while I have made those observations which I thought it was my duty to bring forward in speaking upon this subject.


My Lords, I quite agree with the noble Earl (Earl Granville) that this is a crisis in which we should discuss the matter before us with calmness and deliberation, and that the peculiar circumstances under which we vote to-night lift our debates above the ordinary level, requiring from us no small exercise of that judicial faculty which the Constitution has in-trusted to your House. But I do not think that our deliberations will gain in value, or that your vote will be worth much to-night, if many of the speeches from the opposite side follow in the track of that which has been pursued by the noble Earl. It appears to me that in one form or another, the spirit of silence has taken hold of the councils of Her Majesty's Government. In the other House of Parliament we know they have no other means of meeting in debate the attacks of their adversaries than by commanding their followers under the pain of the severest displeasure of their Chief—and we know how severely that displeasure is visited upon recalcitrant followers—to abstain from taking any part in the debates. It would not, perhaps, be safe to pursue the same policy here; but the noble Earl has made the best imitation of it within his power, for he has made a speech in which he has dealt with everything—grammar, time, the Duke of Wellington, and a variety of other interesting topics; but he never approached within half-a-mile of the points which he was invited to discuss. Now, it is not the grammar of my noble Friend's (the Duke of Richmond's) Resolution, or the precise definition of the word "Executive;" it is not even the interests of the officers of the Army, which may suffer during the autumn, in case this question remains unsettled by reason of the Bill miscarrying, which are to be the subjects of your deliberation to-night. You are invited to-night to discuss a high constitutional question; you are asked to decide upon a grave breach of constitutional usage; and that is a consideration which must far transcend in importance the particular question and circumstances out of which the act we complain of originally took its rise. My Lords, I trust that during this debate we shall not go again into the question of purchase. Although the noble Earl has gone into it very largely, I shall not follow his example. We are satisfied that, as far as our power in the existing state of the law lay, we attempted to prevent the abolition of purchase unaccompanied by any restrictions which should prevent the dangers of Parliamentary corruption, and the dangers of stagnation which, as it seemed to us, would attend so precipitate a measure. Our opinion has been overruled in a way which, as far as we can see at present, until challenged, is at all events legal; and further than this we do not desire to go. But what we call upon the Government to justify to-night is quite another matter. They brought before us the the abolition of purchase as a question which was subject to Parliamentary jurisdiction; they submitted it to a Parliamentary debate; they asked for a Parliamentary decision; and when that decision went against them they said—"We snap our fingers in your face against your decision, and will decide for ourselves in spite of you." A course like that is not to be justified by referring to the inconveniences which, as I before observed, officers will undergo, if the question of purchase remains unsettled during the autumn. The justification of the Government has hitherto been based entirely upon this ground—that there were now acknowledged, with a formality which had never existed before, corrupt practices in the Army, which it was the duty of the Government to connive at no longer, and that it became the duty of the Government, whether they obtained the authority of Parliament or not, to exercise such power as they possessed, in order to prevent that illegality from continuing. Now, if the conduct of the Government had corresponded at all with that justification, I should not now complain of it. If they had said—"We know of these illegal practices; we cannot assent to their continuance; we will prevent over-regulation prices for the future; and will trust to Parliament to give the fair compensation which may be necessary to be incurred in effecting that object." I do not think they would have failed in respect to the Legislature, or gone beyond their proper sphere of duty. But they did more than that. They said—"A Commission has declared that unless you abolish purchase you cannot prevent over-regulation prices." Now, that was a point for Parliament to decide. It was entirely a question of inference. It might turn out ultimately to be as the Commission declared it would be, and in that case Parliament would, no doubt, have applied a remedy. But it was simply childish to say that over-regulation prices could not be made to cease without cutting up root and branch the whole system of purchase. The two things were not necessarily connected. In order, however, to carry out a measure which Government had proposed, and which Parliament had rejected, the Government called up a dormant Royal Prerogative in the middle of the discussion. ["No, no!"] It was a dormant Royal Prerogative, for it had not been acted upon for 150 years, and the calling up of a dormant Royal Prerogative not acted upon for so long a period, is a thing which Parliament must always regard with the greatest jealousy. Owing to the peculiar degree and measure in which the various powers of the Constitution have grown up in this country, our law books are full of Royal Prerogatives which no Sovereign now would ever dream of exercising. If you go on strict precedent alone, it is open to the Executive to decide at any moment matters which are now always left to the Legislature. I believe that if historical instances of the exercise of the Royal Prerogative are to guide us in the present day, even such a matter as the determination of the towns which should be represented in Parliament might perfectly well be settled by a Royal Warrant; and the arguments used by the Government would be very applicable to that case. It would be possible that a Committee should report that bribery existed in certain towns, and that it was impossible to destroy the bribery and put an end to the illegality without taking away the franchise from those towns. A Reform Bill to that effect might be rejected by the House of Lords, and then a Royal Warrant might issue, based upon the practice in the reign of James I. in order to do that which Parliament refused to do. But were that a mere case of the exercise of the Royal Prerogative, however much constitutional lawyers might object to it, there would not necessarily be ground for the grave censure which is now demanded. The whole gist of the matter is, that, having presented a Bill to Parliament, they carry out the provisions of that Bill, notwithstanding the rejection by Parliament of the measure itself. What was the Resolution which the Government formed on the subject at the beginning of the Session, when they laid the Bill before Parliament? The noble Earl says they were embarrassed when the vote of this House was given against their Bill; but does he mean to say that such was his innocence, and such his ignorance of the state of Conservative opinion in this House, that it never crossed his mind that the Bill might possibly meet an evil fate within these walls?


I thought it very unlikely.


But does the noble Earl, then, only provide for things which he thinks are likely to happen? Does he take no precautions against possible contingencies? The noble Earl and his Colleagues must have known perfectly well that it was possible the Bill might be rejected here. Then, in that case, I want to know what had the Government determined to do? I suppose the ground they take is that, from the first they had determined, if this House did not pass the Bill, to act without us. Yet it is impossible to believe that any responsible statesman would act in such a manner. They must have known and felt that certain courtesies were due from the various bodies of the State to each other. What has been done is a thing you would do to no man in private life. You would never say to a man—"This a matter for you to decide upon; I place it before you for your decision;" and then, when he decided against you, would it be a matter of common courtesy to say—"I shall fall back upon rights which I never mentioned before, and decide without you?" It appears to me a more probable hypothesis that, up to the rejection of the Bill, the Government had formed no resolution on the subject; that, when the Bill was rejected, the Government were actuated by passions which we had hoped never existed in minds so celestial; and that the Government then resolved they would make the House of Lords feel what it was to thwart them, and that they could do without us. [Earl GRANVILLE: Hear, hear!] I can sympathize with the noble Earl who thus cheers me, for he has been the instrument—I have no doubt the most reluctant instrument—of insulting the Order to which he belongs. We know in the Government of which he is a Member what fate awaits the very slightest departure from the one sovereign will. The noble Earl has given us a lecture—and he is rather apt to give us such lectures —upon the position of this House under the Constitution, and upon the course he thinks it desirable we should follow. So far as I understood him, he thinks the whole duty of the House of Lords is to obey the House of Commons. The Duke of Wellington, by pursuing that course, raised this House to its present high pitch of authority, and that is the course the noble Earl recommends to us. Now, I freely admit it is the duty of this House to pay earnest attention to the particular party which is in power, and to the particular set of opinions which at the time may be in favour in the country. I admit that the course of the House of Lords should be guided by a due consideration of those facts, however little I may admit that such considerations must predominate. But at the present time less importance than usual should, I think, be attached to the numerical results of the divisions in the House of Commons. During the last three years the course of the predominant party, which we are told, it is the duty of the House of Lords to obey, has been very peculiar. I do not grudge them their large majority. On the contrary, when I first heard that they had such a majority, I was glad there was a party which could take a definite position and put an end to a state of things which, in my opinion, had proved injurious to the standing of public men in this country. But I was not prepared for a phenomenon which has, I think, startled the Liberal party itself. Under ordinary circumstances I should hardly ventured to discuss the Liberal party, but when we are told it is our paramount duty here to obey the behests of that party, I submit we have a right to review the decisions and character of the Sovereign to whom we are expected to bow. Now, the fact which throws some slur upon the great numerical majorities obtained by the Liberal party lies in this—it does not seem to be the average opinion of that party which guides the movements of the House of Commons. The party consists of those who vote with great earnestness for their Leaders, and of those who vote with great earnestness for their opinions; and, when the stress comes, those who vote with particular earnestness for their opinions are apt to carry with them those who chiefly care about their Leaders. Then, there is also a very extreme wing of the Liberal party in the House of Commons, and their allegiance has been secured by sacrifices which I suspect are not always satisfactory to the Members of the party who sit at their side; and from that circumstance we have this phenomenon—that the Minister who possesses the confidence of the large majority, who is in possession of the Prerogative of the Crown, appears to be constantly forced to purchase back the fickle and wavering allegiance of his extreme followers by acting in obedience to their views. Thus it is the extreme and not the moderate opinions which give the tone to and guide the party. When such a state of things exists — when the Royal Prerogative is used for the purpose of giving effect to extreme opinions; when it is made an instrument in the hands of an extreme section, when a great and powerful majority is used for the purpose of enforcing the opinions not of moderate but of extreme men in that party, it occurs to me that then the functions of this House rise into peculiar prominence and importance, and it is our duty to reserve for the opinion of the constituencies measures passed by the House of Commons under that pressure. These, however, are matters to which I should not have referred, if the noble Earl had not dwelt upon the duties of this House in a manner which, I think, is hardly complimentary to its independence or its position in the State. After all, if we are only to exercise our authority by always sacrificing our opinions, is it quite worth while to exercise that authority at all? Is it worth while to hold powers merely for the purpose of using them in support of the views of other people, and against our own convictions? Yet that is the philosophy on which we are invited to model ourselves to-night. My Lords, I do not believe that such motives as these will influence your decision. You are called upon to vote upon a great constitutional wrong. You are called upon to defend the independence of Parliament against the misuse by an imperious Minister of the Prerogative of the Crown. You are called upon to stamp with disapprobation an act which has no precedent in English history—an act which, if you did not mark it as it deserves, would stand for ever in derogation and depreciation of the authority of the House to which you belong. I know that the popular defence out-of-doors for the act of the Ministry is that any act, however unprecedented and unconstitutional, is venial if done in furtherance and in support of the opinion of the House of Commons. But such views are little in accordance with the preservation of the balance of the Constitution which we hold, and I am sure that on reflection they will be little approved by the people of this country. Do not let it be said that this Vote of Censure is an unpractical proceeding, because it will not be followed by the resignation of the Ministers. This is the record of a solemn opinion which you place before your countrymen for their approval. It is an invitation to them to consider this great constitutional question. It is an invitation for them, who are in the last resort the supreme authority, to determine whether it is or is not right that every branch of the Constitution should observe with self-restraint and with courtesy the limits of each other's powers. Those who are not favourable to our existing institutions, those who are in love with the sweet simplicity of a National Assembly elected by universal suffrage, and changing its Constitution once every 20 years—such persons, I have no doubt, will give their warm approval to an act which has set two branches of the Legislature in conflict at the bidding and under the patronage of the third. But I am sure that the act of the Government will not be approved by those who value the special stability which, among all the nations of Europe, is the privilege of the institutions under which we dwell, and I am sure they will join with you in marking with deserved condemnation an act, which above all others, is a menace to the independence of Parliament and an insult to the acknowledged authority — and the never misused authority—of the House of Lords.


My Lords, my noble Friend (the Marquess of Salisbury) who has just sat down, began his speech by an observation in which I heartily concur—that the subject we are called upon to discuss to-night is one which should lift this debate out of the ordinary category of party debates in this House; but I must say my noble Friend followed up that observation by a speech which I will venture to call one of the bitterest and narrowest party speeches I have ever heard in this House. I will not follow the example of my noble Friend, but will merely say that not only has his speech been eminently unjust to the Government, but it has also been full of direct violations of the Standing Orders of this House. It is against the Standing Orders of this House to impute disgraceful motives to any Member of it; but my noble Friend has not scrupled to ascribe to the Members of the Government motives which he must know, and which he ascribed to us because he did know, would be disgraceful as actuating the conduct of the responsible Advisers of the Crown. Having said so much, I decline to follow my noble Friend into the field of argument which he traversed, or to speculate upon the passions, the prejudices, and the motives which may have influenced the Leaders of the Conservative party in the course which has brought us and this House into the position in which we now stand; I will give my noble Friend and those who act with him credit for motives with which he did not credit us; I believe them to have been actuated by regard for the public interest. The noble Duke opposite (the Duke of Richmond) alluded to a speech of mine the other night, in terms which, under the veil of compliment, conveyed a covert rebuke. I can sincerely say that, if I used any expressions which gave offence to any Member of this House, I am sorry I used them; but in doing so, I must say I retract nothing of the argument. I believe it to have been sound, and no attempt has been made to answer it. But I must claim the indulgence of your Lordships on one point. It is the rule of this House that when Motions are made, we may speak of them in such terms, within Parliamentary limits, as we please to use; but after a vote has been taken it is contrary to the usual rule to speak with equal freedom. I must crave indulgence, then, if I speak of the Motion which is proposed, and of the Motion which has been carried as freely as if the latter were still in debate before us. My position is, that though the action of the Government may possibly be without precedent, our justification is that we were placed in a position entirely unprecedented, and that the vote which the House came to the other night was equally unprecedented. Ever since 1866, when one of the greatest military Monarchies in the world was shaken into the dust in a single campaign, and almost in a single battle, there has been a strong and general impression that the military history of the world had entered upon new conditions, and that we ought to look to the re-organization of our forces. That impression was deepened and intensified almost into a degree of panic by the events of the great campaign of last year, when France, which was believed to be the strongest military Monarchy in the world, was completely overthrown in the course of a few months by the forces of the German Empire. From the occurrence of those catastrophes, it was the prevailing opinion of all parties in this country that those circumstances called for our imme-mediate attention, and that the re-organization of our Army was one of the first things which we ought to undertake. What then occurred? The responsible Advisers of the Crown came down to Parliament with a Bill which was described by my right hon. Friend the Secretary of State for War as a Bill to confer powers and to remove obstructions. The responsible Advisers of the Crown came down to Parliament and said—"We are convinced of the necessity of re-organizing our Army; we find purchase standing in our way at every turn, and we therefore ask both Houses of the Legislature to enable us to abolish it." Now, what was the action of the House of Commons? It was this—They said—"We will enable you to deal with purchase in the manner you desire, and we will give you the money which it will be necessary for you to return to the officers in payment of the over-regulation prices, although those prices have been illegal." The House of Commons further listened to the explanations which were given by the Secretary of State for War, and said, virtually—"We have sufficient confidence in you and in your plans to pass this Bill, and thus give you the powers for which you ask." Moreover, the House of Commons, taking the Constitutional course, admitted that the details of Army organization rested with the responsible Advisers of the Crown, and signified their approval of the general direction in which those Advisers proposed to proceed in carrying out their scheme. They therefore passed the Bill enabling the Government to deal with purchase, as well as to refund to the officers the over-regulation prices which they had paid. Well, that having been the action of the House of Commons, what was done by the House of Lords? The House of Lords said—"We refuse to pass the Bill enabling you to deal with over-regulation prices, or enabling you to deal with the question of purchase, until you submit to us for our approval the whole of the details of your scheme of Army re-organization." The noble Duke who began this debate (the Duke of Richmond) referred to the argument which I used on a former occasion as to the unconstitutional character of the vote; but all the subsequent reflection which I have been able to bestow on the subject confirms the impression I then entertained. I feel satisfied that the Motion we were discussing was most unconstitutional, and one which would lead to the most disastrous and injurious results. And let me, in the first place, ask your Lordships to consider what was the character of that Motion. It was a distinct Vote of Want of Confidence in the Government. We are, as my noble Friend behind me (Earl Granville) has said, in a permanent minority of 50 or 70 votes in this House; and we know that when the Conservative party act as a body they can at any time outvote us. We cannot, therefore, be much surprised that we are sometimes defeated by a vote of this House, and I shall not dwell, therefore, on the circumstance that the vote to which I am referring was one of Want of Confidence in the Government. What is most important is that it was not a Vote of Want of Confidence in this Government only, but in the Queen's Government, who, as the responsible Advisers of the Crown, deemed it to be their duty to proceed in the manner which we proposed. Take the comparative position of the two Houses of Parliament, and you will at once see the importance of this argument. I alluded the other day to the danger of refusing to pass such a Bill as the Army Regulation Bill, until the details which were asked for by the majority were laid before us. Now, the House of Commons is the more powerful House and we should take care lest the bad example set here might be followed in that Assembly. There is, however, this difference between the two Houses—that a vote of this character carried by the House of Commons would be immediately fatal to the Ministry; while a Vote of Want of Confidence would not only upset the Government, but would be the means of dissolving the House itself. There exists, therefore, in the action of the House of Commons a practical check which does not exist in the House of Lords. This shows how the various powers in the State are balanced by ancient constitutional principles. Our Constitution is not a written one, but it is one which consists essentially in the exercise of the spirit of moderation and good sense between the different branches of the Legislature. And who was it, I would ask, that first violated that spirit of moderation and good sense? I say it firmly but respectfully, that the violation lies with that branch of the Legislature which declared that it would not proceed to legislate on a subject requiring by universal confession almost immediate action until in an unconstitutional manner the details of Army organization were submitted to it, thus interfering with the exercise of the Prerogative of the Crown. If that precedent had been allowed by the Government to be set up, a most dangerous precedent would have been established—a precedent which it would be difficult for the House of Commons to pursue for the reasons which I have stated, but which it would be perfectly easy for your Lordships to follow, because there would not be the same danger of upsetting a Government, so that you might refuse to legislate on any subject until the Advisers of the Crown had laid before you details such as those connected with the organization of our Army. I say, therefore, that your vote was an unconstitutional vote. I will now ask you whether you think it was a reasonable vote? You ought to have further details with respect to Army organization. I would put to you the question—how we were to define selection? I defy any man to define it; while with regard to a scheme of retirement were there not different calculations on that point which rendered it impossible that we could submit to you in reference to it any particular statement with any confidence? I must now complain of the ingenuousness of the noble Duke opposite (the Duke of Richmond) when he tells us that this House did not throw out the Army Regulation Bill, or even suspend its progress. Is that, I would ask, a fair way to represent what has really occurred? Has any answer been given on that point to the question which was put by my noble Friend behind me? Was it possible the Government could have come down the night after the Amendment of the noble Duke was carried, and move the second reading of the Bill without any new motive and in the absence of any new circumstances? If we had ventured to do that, I feel sure the noble Marquess opposite (the Marquess of Salisbury) would be the very first to say that we were offering an insult to your Lordships' House. I contend, therefore, that all the pretexts put forward by the noble Duke—["Order, order!"]—I will say all the arguments—or, rather, the pretended arguments—["Order, order!"]—well, as noble Lords opposite are so squeamish with respect to the use of language having the slightest tinge of that which they have not hesitated to employ towards us, I will withdraw even the word "pretended," and will merely observe that all the arguments of the noble Duke with respect to the vote come to by this House the other night are not arguments consistent with the notorious facts of the case, or with his own manly and straightforward character. The Government were placed in this position by the vote—they knew that the Bill was defeated for this Session, unless a new state of circumstances should arise; for it is not fair to represent the vote as anything else than one of virtual rejection of the Bill for this Session. The Government, therefore, found themselves in this position—that every step for the re-organization of the Army, which was interfered with by the existence of purchase, was postponed for another year by the action of the House of Lords, which thus appeared to arrogate to itself the power of directing the exercise of the Royal Prerogative in the regulation of the Army. Such being our position—a position, I maintain, entirely without precedent in our Parliamentary history—what was the course which we should take? There were, no doubt, the three traditional courses open to us, and I will just allude to one or two which it is said we ought to have adopted. We might have resigned our offices. My noble Friend opposite (the Duke of Richmond) did not suggest that we should have taken that course, but it is, nevertheless, one which we might have pursued. I will, however, venture to say that for a Government to resign, having a large majority in the House of Commons, because of an adverse vote in this House, in which every Liberal Government has to work against a large majority, would be a course too favourable to the authority and influence of this House and one not to be thought of. There is another course which was suggested to us. The noble Earl (the Earl of Derby) told the House the other night that the abolition of purchase was in the hands of the Crown, and that it was competent to us to abolish it by the exercise of the Royal Prerogative, and to take a Vote of the House of Commons for the regulation prices. The noble Earl then went on to say that if he were rightly informed, it was equally competent for us to take a Vote in the House of Commons for the over-regulation prices. That was a remarkable statement, and I wish to direct your Lordships' attention to the consequences which would follow from the adoption of the noble Earl's suggestion. It is true that we could abolish purchase by the exercise of the Prerogative of the Crown, and that we could also take a Vote of the House of Commons without any reference to this House, for the regulation prices. I must, however, confess that the suggestion from a Leader of the Conservative party that we might take a Vote in the House of Commons for over-regulation prices, too, somewhat astonished me. To act upon such a suggestion involved this—that we should make one House of Parliament dispense with the law. It is the law which makes over-regulation prices illegal; and if we had taken a Vote of the House of Commons for over-regulation prices, we should be dispensing with the law, without asking for that dispensation, the sanction of all the branches of the Legislature. That alternative, therefore, being before the Government, was one which we deliberately and advisedly rejected. We were unwilling to dispense with the law without asking the sanction of this House, and in taking that course we showed our respect for the House of Lords in a manner which, perhaps, you little imagine, and which, in some quarters, it was thought we did not entertain. There is also another suggestion which was repeated by my noble Friend the noble Marquess to-night. He says we might have allowed the regulation prices to continue, and have put a stop to the over-regulation prices. Now, that sounds a very plausible suggestion; but the course which the noble Marquess recommends would not be either a straightforward or a manly one to pursue. It would, besides, be one eminently unjust to the officers of the Army, and you would rob the officers in appearing to save yourselves. You would have professed to be acting within the strict limits of the law, while you would in reality have been robbing the officers of the whole of their over-regulation prices. Besides that, it would, I believe, be physically impossible to separate regulation from over-regulation prices, for reasons which I gave the other night, and which it is now unnecessary to repeat. But even if we could do so, we should be leaving the officers of the Army in a most unfair position had we followed the advice of the noble Marquess. There was another course open to us, and notwithstanding all that has been said on the subject by noble Lords opposite, that, I fancy, is the course which they think we ought to have taken. They think we ought simply to have accepted our defeat, and to have given up the Bill until next Session. Well, what does the adoption of that course mean? It means that we should allow regulation and over-regulation prices to continue, and that we should, with our eyes open, permit a continued violation of the law; in other words, that the House of Lords should by its sole vote be placed exactly in that dispensing position in which we refused that the House of Commons should be allowed to stand. We, however, declined to make either House the sole dispenser of law; and, on that ground, having fully considered it, we deliberately, and I think rightly, rejected that, the third and last course we could pursue. Well, all those various courses which I have mentioned having been considered and rejected by us, what remained for us to do? It was our duty, we thought, to put an end to a position of embarrassment, illegality, and suspense, and we were not afraid to exercise this Prerogative of the Crown, which, besides being a Prerogative of the Crown, has been sanctioned and fortified by a special statute of the Legislature. On the contrary, we deemed it to be our duty to exercise that Prerogative to suspend, and not absolutely altogether to abolish purchase. I say that because, although in the circumstances in which we are now placed, and with the declaration of public opinion on the question of purchase, it is perfectly true that the suspension amounts to a practical abolition of the system, yet legally and technically it is only suspended by Royal Warrant, and is not dealt with precisely as we proposed to deal with it by this Bill, for the suspension of the practice by Royal Warrant only implies that it is suspended during the time that the pleasure of the Crown shall be extended to the Warrant itself. We know, so strong is public opinion against purchase, that, once knocked down, it cannot be restored, and we attain the same object which we proposed to effect by the Bill, although we do it in a different manner. "But," asks the noble Marquess, "Why did you not resort to the exercise of the Prerogative at first in order to abolish purchase?" Well, although we did introduce a clause into the Bill to render purchase illegal, the main object of the Bill was not the abolition of purchase, but to get the sanction of the House of Commons and Parliament for the payment of the over-regulation prices. If it was a matter of over-precaution to insert a clause to abolish purchase, that is the utmost that on that point can be said against the Government. Having obtained the Vote of the House of Commons, and being quite satisfied that, in your Lordships' opinion, if purchase were abolished the officers should be paid the over-regulation prices, I contend it was our duty, under all the circumstances of the case, to take the course which we have adopted. There is another point to which I should like briefly to advert. The noble Marquess, who is very fond of appealing to the esprit de corps of this House, says—"What is the use of introducing a Bill to your Lordships' notice if you are not to vote freely upon it?" The noble Marquess has never, that I am aware, asked such a question with respect to the Appropriation Bill, which we are free to discuss and reject, and his language must be received with some amount of qualification. Now, this Bill is precisely of that class of measures to which I am referring. Take the case of the Bill which was introduced as the first of a long series for the purpose of shortening the length of military service in the Army. It was unfavourably criticized by a large majority of military men in this House. It was disapproved, I believe, by the Duke of Wellington; but it was thought to be a measure—the Government having on their own responsibility deemed it desirable to take a certain course—which it would hardly become this House to reject. The same observations apply to another Bill for the shortening of the period of service, against which, although many noble Lords opposite spoke, they never voted against it. We were very much opposed by military men in this House. Almost every noble Lord of military experience was against the Short Service Bill, and the other Bills to which I have referred, and yet they did not give effect to their opposition. I say, therefore, the vote taken the other night was one of an unusual and violent character, and forced the Government to take the course which your Lordships are now invited to condemn. You think that we have done something grievous and injurious to the character of this House. I believe that we have saved this House from a position of difficulty; that we have saved it from invading an important Prerogative of the Crown—a policy which might be pursued to any extent by your Lordships' House, but which could not be pursued by the House of Commons. We believe, in the second place, that we have saved to the country valuable time which would otherwise have been lost in the organization of the Army; and that we have saved the officers from a period of suspense which would be most injurious to them, and not without danger as regards their pecuniary interests. Further, we have saved the constitutional functions of the Executive from invasion by the vote of this House; and we have saved the House also from any share of responsibility for the abolition of purchase, which it declared itself unwilling to condemn. And, lastly, we have saved Parliament from the repetition of scenes which have not been creditable to Parliamentary government, and which could not but involve serious danger. After these substantial objections, it seems hardly worth while to point out that this Resolution involves propositions not one of which is true in point of fact. My noble Friend (Earl Granville) has dwelt on the fact that in the Resolution the Executive is spoken of as the Crown, and the Crown as the Executive; I will, therefore, pass over that. But then the House is asked to express its opinion that— The interposition of the Executive during the progress of a measure submitted to Parliament by Her Majesty in order to attain by the exercise of the Prerogative and without the aid of Parliament the principal object included in that measure is calculated to depreciate and neutralize the independent action of the Legislature. I say it is not true to speak of the "progress" of the measure. You stopped its progress, and you intended to stop it. Then, it is not true to use these words— In order to attain by the exercise of the Prerogative and without the aid of Parliament the principal object included in that measure. It is not by the exercise of the Prerogative alone, but by the exercise of a prerogative appointed by statute. The very fact that we are now pursuing the Bill shows that we do desire the aid of Parliament in a most important matter. And, then, again, it is not "the principal object included in the measure." There is not one of those propositions which are true in point of fact. Lastly, it is said that what we have done "is calculated to depreciate and neutralize the independent action of the Legislature." This is really amusing. Why, legislation would have been stopped by your Vote, and by whose action is it now going on? How can you affirm such a proposition? The second reading is not yet passed; but I understand you intend to show your independence by moving various Amendments in Committee. Therefore, I say, not one of these propositions is true, and if this House desires to pass a Vote of Censure, surely it is not desirable to pass it in terms everyone of which is demonstrably untrue. In its spirit the Resolution is a violent and unjust condemnation of the action we have taken. We believe, on the other hand, that we have deserved the thanks of the House and the country for having delivered the Army from a great difficulty, and this House from a position in which it seemed, however unintentionally, to have attacked the functions which properly belong to the responsible Advisers of the Crown.


my Lords, my noble Friend opposite (the Duke of Argyll) addressed to me the other night a very strong rebuke for certain terms which I used in my speech; but I must say my noble Friend has to-night hardly acted on the principle which he himself laid down, for from first to last he has given us a series of hard words and hard names as applied to our conduct. I certainly cannot express my assent to the concluding words of the speech of my noble Friend. He has referred to the language used upon this question by my noble Friend (the Earl of Derby). Even in his absence, it is not my place, on the present occasion, to defend that noble Earl; but I must say that the sense in which my noble Friend's speech was to be understood was very different from that which was placed upon it by my noble Friend opposite. A question which I think to be very pertinent was asked by the noble Duke who moved the Resolution (the Duke of Richmond), as to the sense in which this Royal Warrant has been signed, whether by Royal Prerogative, or by virtue of statutory powers. That seems to me a very vital point, but neither the noble Earl the Foreign Secretary (Earl Granville) nor my noble Friend who has just spoken replied to my noble Friend's challenge in anything like a satisfactory manner.


The Warrant itself was statutory.


The question has been raised over and over again, and my noble Friend has spoken of it sometimes as one thing, and sometimes as another; at one time as a Prerogative, at another as a Prerogative appointed by statute; and he used this remarkable expression—that the Prerogative was fortified by statute. I apprehend that Prerogative as such requires no fortification by statute. My noble Friend stated the various courses open to Her Majesty's Government, and by an exhaustive process arrived at last at the course which they ultimately adopted, and that course he justified. Let me attempt to justify the course pursued by those who are prepared to vote for this Resolution. Those who vote for this Resolution must be justified in a certain sense by the conduct which Her Majesty's Government have pursued. There are no less than four parties who are affected by that conduct —this House, the House of Commons, the Crown, and the Government themselves. I venture to say that every one of those four parties is placed more or less in a false position by the conduct of Her Majesty's Government. This has been the course pursued as regards this House—we have had presented to us by Her Majesty's Government somewhat, late in this Session, a Bill, which the majority of your Lordships thought quite inexpedient to adopt in the form in which it was laid before us by the Government, and we declined to read it a second time until, at all events, a scheme of re-organization was laid before us. That was clearly and unquestionably the right of this House. But at that stage Her Majesty's Government had recourse to the exercise of the Royal Prerogative, and by that Prerogative did that which this House had declined to do until certain schemes of re-organization had been laid before it. We have heard this evening of speeches of a very remarkable kind delivered on Saturday, speeches in which most extravagant denunciations were made by Ministers of the conduct of a minority in "another place," and what is less extraordinary, a wholesale and glowing eulogy passed upon the conduct of Her Majesty's Government in all matters. We have also been accused in this House of a wish to produce some collision between the two Houses of Parliament, and were admonished to discharge our functions with prudence and wisdom, so as to obviate any such contretemps occurring. I can only say, for my own part, looking back to the history of the last few years, that it does seem to me that it has been only by the most extreme prudence, forbearance, and caution on the part of this House and its Leaders, that we have been saved from collision with the other House of Parliament. I am at a loss myself to understand how the reckless or insane wish to bring this House into collision with the other House of Parliament can reasonably be laid to our charge. I say, therefore, so far as this House is concerned, we have a right to complain, and it is our bounden duty to condemn in temperate language, as I conceive we do, the course which Her Majesty's Government have pursued. But if this is our position, what is the position of the House of Commons? They have quite as much reason to complain—and I must say the right hon. Gentleman the Chancellor of the Exchequer seems disposed to admit it in its fullest significance—of time wasted, of Bills withdrawn, Bills of the highest public importance—far more important in a social and public point of view than the Bills which have been pressed forward. The House of Commons have to complain of the utter waste of the whole Session; for all that they can congratulate Her Majesty's Government on having done, is having passed one Bill for the coercion of Her Majesty's subjects in Ireland, and another for the regulation of dogs. It is true that the Radical party in the House of Commons gain a temporary triumph; but it is at the expense of their own past principles; for it is perfectly evident, even by the admission of my noble Friend, that purchase has been abolished by an exercise of the Prerogative, and what the Royal Prerogative has destroyed the Royal Prerogative can set up again. There is, however, another party in the House of Commons, besides the Radical section, for whom I should have thought Her Majesty's Government would have had greater consideration; there is the moderate Liberal party sitting on the same side, to whose opinion, when expressed, no Government can afford to be insensible, and who, if their speeches be good for anything, disprove the strain put on the Constitution, because they know the danger which violent constitutional wrenches produce, and who are hardly likely to regard the course which the Government has pursued with satisfaction. They must know very well that if this use of the Prerogative can be made to over-ride the decision of this House, it may one day be made to over-ride the decision of the House of Commons. Thirdly, in what position have they placed the Crown? The position of the Crown appears eminently unsatisfactory. If there is any one power in the Constitution which all Ministers for years past have agreed to withhold from public gaze it undoubtedly has been the power of the Prerogative of the Crown. They have considered it not merely as a matter of political prudence to do so, but also as a matter of duty to the holder of the Crown. Her Majesty's Government have been the first to depart from that wise reserve; they have brought the Crown into the most direct antagonism with this House, and possibly exposed it to much unpopularity abroad. A question has been repeatedly asked this evening, to which no real answer has been given—namely, whether or not Her Majesty's Government, in the early stages of this Army Bill, contemplated the course of action now adopted, in the alternative of employing the Royal Warrant? If they did, then they ought to have used the Prerogative without coming to Parliament at all. But if they did not, then by the course they adopted they sought to bring penal retribution on this House, and that is not the act of a wise, prudent, and cautious statesman, but rather of a political gambler. Lastly, what is the position of the Government itself? I say nothing of the transparent inconsistency of beginning with Parliamentary procedure, and ultimately—I will not say of the apparent vindictiveness towards this House, because I am willing to accept the disclaimer of noble Lords opposite, but of the violence done to the Constitution, which, I presume, but few Constitutional lawyers will deny, but, on the contrary, will be ready to admit that nothing equal to it has occurred since the days of the Long Parliament. But the course of the Government implies a total forgetfulness of their duty as a Government. In this country a Government is not merely a collection of Gentlemen professing certain political and party opinions, and holding office simply or chiefly to promote those opinions, or to push the interests of their party. Those who hold high office in this country are the servants of the Crown, and it is their bounden duty, in another sense, to hold the balance between the different parts of the Constitution, and to sanction nothing that would jeopardize or imperil its existence. We are not used to see our Ministers carry a lighted candle into a powder magazine, or dig up the foundations of the Constitution in order to ascertain their strength. The noble Earl the Foreign Secretary appealed to-night, as he did on a former night, to the conduct of the Duke of Wellington in leading this House. I would appeal to the conduct of one under whom the noble Earl served, one who lived in later times, a Liberal Minister, who exercised great power both in Parliament and the country with the most cautious reserve and abstention, and who was most jealous as regards all the component parts of the Constitution. I might refer the noble Earl and Her Majesty's Government to the conduct which Lord Palmerston pursued not on one occasion only, but on three or four occasions not dissimilar to the present. Lord Palmerston's wise and cautious policy saved us from a great crisis more than once, and from violent dislocation of the various parts of the Constitution, which we believe to be necessary, and which you say are valuable. I quite admit that an hereditary Chamber must discharge the duties which devolve upon it with great care. There are some public questions on which the country decides and the House of Commons, as the organ of the country, expresses and represents that decision. But these questions are few. On the other hand, there are questions upon which the country has no opinion at all, and upon which the House of Commons cannot possibly express the views of the country. On the first class of questions, I cheerfully admit that it is the duty of this House to bow to the decision of the country when it has been once spoken. But with regard to the larger class of questions, I say that this House is entitled, and that it is its duty, to claim the right of suspension of certain Bills and of the revision of others. I venture to say we have done no more than this. If you deny us that power, then I say the functions of this House will become worthless; then our existence here is a mere mockery. Our existence, if we have any existence at all, is a mere suspended animation, and as such it is an existence which neither this House nor any House worthy of the name could for one moment endure. Now, the Radical section of the House of Commons is so far consistent, that whenever there is a disagreement between the two Houses, it calls for our extinction. That is mere rhodomontade, no doubt, but it is at least consistent with their principles. They admit that they do desire to abolish us; but I appeal to the good sense and justice of the people whether, if this House is to continue, it is to continue in a condition in which it cannot by any possibility exercise its functions usefully to the country, or honourably or creditably to itself as a branch of the Legislature? If we continue to exist, we continue to exist for the good of the country, and for our own credit and honour. If we exist for the good of the country, then I say we must have certain legislative powers—less than the powers I have described we cannot possibly have—and if we have those powers, then I say in fairness, in justice, in right to the country, we are bound to exercise them. And if we exist for our own credit and honour, then we must claim free speech and free vote, and a right to exercise our duties without fear and without favour. The noble Earl taxes us with passing a Vote of Censure on Her Majesty's Government. I regret, for my own part, that the Resolution should be forced to take the form of censure. That is inevitable in the nature of things. We ask this House to censure the course that has been pursued not for the sake of passing a mere censure on the Government, but in order to vindicate the present action and future independence of this House as a branch of the Legislature which has always been free, and which, if it ceased to be free, would not deserve any longer to exist.


My Lords, I desire to say a few words in explanation of the vote I mean to give on this question, for from the position I hold, it becomes a part of my duty not to give the vote I intend to give without expressing my reasons for giving it. I wish, in the first place, your Lordships to consider what you are called upon to deal with. Her Majesty, through her Ministers, suggested a certain measure to both Houses of Parliament, which she thought it desirable to be carried. Now, what has been the course of it, since the beginning of the Session? That measure, the Army Bill, as we all know, passed the other House after protracted debates, and when it reached this House your Lordships resolved that it ought not to be passed until certain conditions had been complied with. Thereupon, Her Majesty immediately passes it without your consent. Of course, when I say "Her Majesty," it is with a full regard to the constitutional doctrine, that whatever the Monarch does is done on the advice of the responsible Advisers of the Crown. It is very important, in considering the subject, to observe the peculiar course adopted by the Government in introducing this subject to Parliament. I never knew a case in which the Crown interfered personally for the purpose of influencing the debates or the decisions of Parliament; but here the Queen is put into actual personal collision with this House, and it was that which creates the great distinction in this case. She does not stand as the arbiter of a conflict of opinion between the two Houses; but the Queen interferes personally, and says to us—"You have said that the Bill shall not be passed—but it shall be passed." Now, I say that that is a position in which the Crown ought not to be placed, for it inevitably does great harm. A great number of people in the country believe that the acts of the Crown are really the personal acts of the Sovereign, and they will imagine that the Queen and the House of Lords are personally at issue. Such a course as that which has been adopted is wholly without a precedent since the Bill of Rights. I have looked as far as my occupation would allow, and I have not found a single instance in which the Crown has ever interfered to over-ride the decision of Parliament in a similar way to the present. When I was in the House of Commons it was a common observation that you must not mention the name of the Crown for the purpose of influencing anyone; and yet in the present case the Crown is brought in personally to interfere with the functions of this House. Another noble Lord on this side called "No, no!" to-night when the noble Marquess (the Marquess of Salisbury) said that a "dormant" Prerogative had been revived, but can it be denied that the exercise of this Prerogative was dormant—in fact, that in this form it had never been exercised before? The noble Earl the Secretary of State for Foreign Affairs (Earl Granville) referred to a great number of instances in which regulations had been made for disposing of certain places in the Army and the like; but I beg to assert they had no resemblance whatever to this case. Is there one of those cases where that particular case had previously been brought before Parliament who had expressed an opinion adverse to the exercise of the Prerogative? if not, no one is a precedent for the present proceeding. In all those cases the regulation was made by law. The Prerogative of the Crown was illegal if it affected the private interests of any persons whatever. No one could say that a Royal dispensation could diminish the property or private right of the subject, and accordingly, in the worst of times, it was always laid down that when the Crown exercised its Prerogative to the detriment of the rights of any private subject, such exercise was illegal. Therefore, in all those cases to which the noble Earl referred, certainly nobody was injured; if any persons were injured, they had their redress in the Courts of Justice of the country. But what is the effect of the present exercise of the Prerogative? We must consider it in itself, and without regard to the future action of Parliament, because no one is entitled to defend an improper exercise of the Prerogative, on the ground that it was to be expected that Parliament would interfere to remedy the injustice to individuals that might be the consequence of the act of the Crown. How does the matter stand? An Act passed in 1809, by which the sale and purchase of commissions was excepted from the operation of the Sale of Offices Act, and on the strength of that exception, and of other regulations issued by the Crown, a number of persons have invested money in commissions in the Army; and now at a stroke of the pen, by the signing of a single Warrant, their commissions have been rendered worthless, thereby depriving everyone of those persons who under the sanction of an Act of Parliament and of Army regulations had paid hundreds, and in some instances thousands of pounds for their offices, of their pecuniary interests in those offices, and even making them liable to pay a penalty: and this merely on the belief that Parliament will think fit to decide whether, and to what extent, it will compensate those persons. As I before observed, I have looked for precedents for this case, but I have not been able to find one. There are plenty of precedents, no doubt, of the Crown exercising its Prerogative domestically among the servants of the Crown and the like, but none where the Crown interferes with a large class of persons, subject to the administration of Parliament. Can that be a just ex-exercise of the Prerogative? And if we admit the principle, will it not easily extend itself to other cases? For instance, I remember the Reform Bill of 1830; and when it was rejected by the House of Commons there were not a few persons who said—"Well, let the Crown send a writ to Manchester, to Birmingham, and other large towns to elect Members of Parliament." This had been done in scores of cases in the earlier period of our history. But that was not considered either a just or, in the proper sense of the word, a constitutional proceeding, and it was not adopted. But why? Because the matter had been submitted to Parliament, and the matter could not constitutionally be taken at their hands. Again, observe another consequence of the issue of this Royal Warrant. It is either to be acted on, or not to be acted on. If it is to be acted on, then the purchase clauses of the Army Bill are wholly superfluous, and this result will follow—that the next Prime Minister may consider purchase to be a very good thing, and he may restore it; and you are thus leading to a possible state of uncertainty infinitely greater than any that would have resulted from the action of your Lordships' House. But if it is intended to act upon the Royal Warrant, I can only say that it is the most violent method of making your Lordships eat your own words that can well be conceived. Why did not the Government call upon the House of Commons for an Address to the Queen, asking Her to issue a Warrant putting an end to purchase? That would have been perfectly legitimate, and no doubt the Queen might then have acted as an arbiter between the two Houses. I cannot but suspect the reason to have been that they were apprehensive that the House of Commons would not assent to that course, with such a majority as they would think sufficient to justify such a proceeding. If that course had been taken, however, the difficulty between the two Houses would have been no greater than it was made when your Lordships threw out the Bill—for I admit that the vote of the second reading was intended to defeat the Bill. In these matters the Crown never interferes where there is no opposition, except at the instance of one or the other House of Parliament; and, therefore, hitherto I have considered the question as if the Warrant were perfectly legal. But is it legal? I entertain very considerable doubts about it, though I will not give a confident opinion, as I have been too much occupied to look into the question to the full extent I could desire. But the Prerogative is either sanctioned by the Bill of Rights, or it is independent of it. The Bill of Rights says that no dispensation shall be valid, unless it is done by an Act of Parliament authorized by the Act itself. Is this Warrant issued by the authority of the Act of Parliament of 1809? Certainly not. The words of the clause in question, by which commissions in the Army are excepted from the operation of this Act, are these— Provided always, that it shall not extend to any purchases, sale, or exchange, of any commissions in His Majesty's forces, for such prices as may be regulated by any regulation made or to be made by His Majesty in that behalf. That is the whole of it. Where do you see in that power to put an end to the regulation price; although it is true that under that Act purchase might have been got rid of by a subterfuge, to which, however, no Court of Justice would for one moment have listened to—namely, by reducing the regulation prices to 6d. or 1s.? But to say that a power given by Parliament to any one to regulate prices gives that person a right to abolish or prohibit the thing for which the price was to be given, is contrary to common sense and a violation of any rule of construction. The Warrant, therefore, cannot be supported by the Act of 1809, or by any Act authorized by the Bill of Rights. Then, can it be supported by the Prerogative of the Crown left untouched by the Bill of Rights? That Prerogative, according to all the highest legal authorities, must be exercised in such a manner as not to injure anyone; and, if it do, it is illegal; but the result of this would be a serious injury to a considerable class of persons, unless you put in a clause for their compensation. It is impossible, however, to support the exercise of the Prerogative of the Crown upon the faith that Parliament will do something which is to take the sting out of it. If it could be so supported, no exercise of the Royal Prerogative would be illegal. It might be a fit thing for your Lordships to have the opinion of the Judges upon it, and I should like to know whether the opinion of the Solicitor or the Attorney General was taken upon the subject. Your Lordships came to a vote upon the Bill early on Tuesday morning, about 3 o'clock, and the Warrant was signed at Osborne on Thursday afternoon. In my experience of the sort of cases laid before the Law Officers of the Crown, they would not have had time to consider the matter in the interval. Well, then, what a precipitate proceeding this is, and what object can there be, except to compel your Lordships to come to a decision which is dissented from by the majority of your Lordships' House. This is not a case of verbal criticisms, as might be supposed from some of the observations which have fallen from Her Majesty's Ministers, but it is a great constitutional question, which has never been raised since 1690. There has been an exercise of the Prerogative of the Queen, not for her own advantage, but at the instigation of her Government; and I believe wholly unconscious of the circumstance that a similar power might be inflicted upon either House of Parliament, as occasion might require; and the question is, whether your Lordships are to stand forward in the breach, and protest against what has been done? I am of opinion that it is your duty to do so, and that you would be shrinking from the due exercise of the constitutional functions vested in you unless you did so. I will not detain your Lordships further; but I think that as I am going against all my Friends in this matter, that it would not be becoming in me to support the Motion of the noble Duke (the Duke of Richmond) without stating the conclusion at which I had arrived, after careful consideration, of the real constitutional justice of the case.


said, he could quite understand that the step taken by the Government in that matter came upon the public by surprise; and that the question was one of considerable importance, looking at the way in which the course taken had been attacked, and the principles which were said to be involved. He could not but think that the language of exaggeration had been employed in describing what had been done—"a great constitutional wrong, an outrage to that House, a constitutional wrench, and an entirely illegal act;" and he thought that the noble and learned Lord who last spoke (Lord Romilly) would find that in the opinion of the Judges in Westminster Hall that proceeding was perfectly legal. Moreover, its legality had not been questioned even by the noble Duke opposite (the Duke of Richmond). The charge brought against the Government by the Resolution was that "during the progress" of a measure through Parliament they had recourse to the authority of the Crown. But was there any progress in connection with the measure at the time? Their Lordships had refused to read Bill a second time until certain things had been done, which could not be done that Session; and therefore the Bill had been substantially rejected. Under those circumstances the Government was justified in regarding the Bill as dead, and in shaping their course on that supposition. But what steps were the Government, acting on the assumption that the measure had been practically set aside for the present Session, bound to take? By the Act of 1809 the sale of commissions on conditions other than those laid down by regulations contained in subsequent Royal Warrants were declared to be illegal, and that statute further enacted that such illegal sales should involve the forfeiture of the commissions, the subjects of such sales; that such commissions being sold by the Crown, half their proceeds, not exceeding £500, should go to the informer; and that all persons aiding and abetting such sales should be liable to be indicted for a misdemeanour. As the law now stood, those were the penalties that had been incurred by all officers who had purchased or sold commissions for more than the regulation prices; and it was only surprising that the existing illegal practice should have gone on for so many years without some evil-minded individual calling them to account for the breach of the law which they had committed, perhaps even to the extent of indicting the right hon. Gentleman the Secretary of State for War (Mr. Cardwell) himself, for misdemeanour, on account of his unwilling and unavoidable complicity in that nefarious commerce. Not only that, but the fact of the obligation of the War Office to put an end to it being made public, it was obvious that the system could not be allowed to continue. The action of the Government might have been good or bad; but, after all, what else could they do? The Government, therefore, having in view the Reports of the Royal Commission and the Committee which had been appointed to consider this question, had come to the conclusion that the time had arrived when a complete stop must be put to these illegal sales, and therefore they had introduced this measure in order to secure to the officers the re-payment of the over-regulation as well as the regulation prices, which they had paid under a system for which they were not personally responsible, and also to obtain from them an indemnity for the breach of the law. The measure having been practically rejected by their Lordships, the Government, in order to throw a shield over the officers, exposed as they were to the penalties liable to be imposed upon them by the violation of the provisions of the Act, determined, both in accordance with their duty and and inclination, to put an end to purchase altogether by Royal Warrant. Upon the question whether or not it was legal for the Crown to issue such a Royal Warrant after the matter had been submitted to Parliament, he should not enter, because the legality of the instrument could easily be tested in their Courts of Law. The Government had been taunted with having unnecessarily invoked the Prerogative. Undoubtedly, the word Prerogative had had an ugly sound in former days, when Prerogative had usually been exercised in order to invade the liberties of the people; but in the present instance it must be acknowledged on all hands that, theoretically at least, the Army was constitutionally under the control and management of the Crown; and, in accordance with that doctrine, the Crown had exercised that power freely, and without question. The Prerogative, therefore, which had been exercised in the present case was merely an exercise of the right of control which all were entitled to exercise over their own households. He could scarcely believe his ears when the noble Marquess opposite (the Marquess of Salisbury) had declared the step taken by the Government to be the revival of a dormant Prerogative of the Crown. In 1721, in 1766, in 1773, in 1783, in 1818, in 1851, and in 1861 Royal Warrants had been issued, regulating the conditions under which the sales of commissions in the Army might be effected; and therefore it was absurd to pretend that the right of the Crown to issue such Warrants had become dormant. The only question that remained for consideration was whether the step that the Government had taken in the matter was a politic one, and one that was called for by the peculiar circumstances of the case? During the whole of the debate he had heard no course put forward as being preferable to that which had been adopted by the Government. It had certainly been suggested that the Government should have contented themselves for the present with abolishing the over-regulation prices; but so long as purchase was permitted at all, it had been found utterly futile to endeavour to prevent over-regulation prices being paid for commissions, and therefore the Government had felt themselves bound to put an end to the purchase and sale of commissions altogether. Turning to the Resolution now before the House, he regarded it as intending to mean that Her Majesty's Government, after having submitted the subject to the determination of Parliament, had acted improperly in setting aside that determination, and in taking upon themselves to decide the question by means of an exercise of the Royal Prerogative. But it would not have done for the Government to have introduced into Parliament a Bill merely to give compensation and an indemnity to the officers, because then it might have fairly been asked how it was that no complete scheme had been submitted to Parliament dealing with the subject of the abolition of purchase as a whole. The Bill having been practically rejected by their Lordships' House — although doubtless it was capable of being revived—the Government had been forced to deal with the matter in the best way they could. As far as he understood what was going to happen, noble Lords on both sides of the House were about to read the Bill a second time; but it was proposed on the part of noble Lords opposite, to preface their assent to the second reading of the measure with the Resolution now under discussion. And here he must ask what possible benefit could be achieved by passing such a Resolution? Would the character of the House be vindicated by their Lordships agreeing to such an expression of opinion? Of course, if their Lordships felt that the House had been outraged and insulted by the conduct of the Government, he could understand that the passing of such a Vote of Censure might be regarded as a sort of retaliation—a poor sort of retaliation at the best. He ventured, however, to declare that there had been no intention whatever on the part of Her Majesty's Government to outrage or to insult their Lordships' House. The measure in question having been practically rejected, the Government had a right to regard it as dead, and to take such steps under those circumstances as they considered to be necessary; and their conduct could in no way be regarded as having the slightest reference to the decision arrived at by their Lordships' House. It was sometimes said that that House was bound to accept all measures that were passed by the House of Commons; but he contended that the independence of the House of Lords was one of the greatest possessions of the country. If ever such a question should arise he would be the last to agree to the proposition that that House existed only for the purpose of registering the decrees of the House of Commons. Better not exist at all than that. And if it could be shown that that Warrant was an attack on their independence, he, for one, would be the very last person to speak a word in its favour. Now, nobody expected that the Motion if carried would have any effect on Her Majesty's Government in the way of changing the Administration, and what then would be the use of passing it? That House only acted in dignity when it acted for some definite and constitutional purpose. Those who thought an affront had been put on that House would doubtless support the Resolution. Those, again, who thought that the conduct of Her Majesty's Government of general affairs had not been satisfactory would support the Resolution. But those who, like himself, felt that the dignity of that House was not involved, and that the Government had adopted the only course open to them in the discharge of their responsibilty to the country and to the Army, the officers of which might be subject to a criminal prosecution, would refuse to assent to a course which, in his opinion, was in every way ill-advised.


My Lords, when I entered this House a few hours ago I had no intention of taking any part in this discussion, but I understand that I have been referred to by the noble Duke (the Duke of Argyll), who quoted me as having given encouragement and support to the Government, and as even in some measure having suggested the course which the Government have now adopted, by way of relieving themselves from the embarrassment created by the vote of the other night. I feel it due to myself to say in the most distinct manner—and I am sure I shall be borne out by all who listened to what I then said—that no language of that kind was ever used, or intended to be used, by me. It is true that I warned my noble Friends on this side of the House that there was a possibility that the Government would adopt this course; and that I had been informed that it was legally within their power to do so; but I do not think it requires very much argument to show that between pointing out that a certain course is possible, and encouraging or recommending that course, there is an exceedingly wide difference. To use a homely illustration, suppose that a friend of mine was in the habit of going to bed at night leaving the door of his house unlocked, and that I warned my friend that if he persisted in that carelessness he would be very likely to find some day or another that his house had been robbed, I do not think it could fairly be contended that such a warning on my part was intended, or could operate as an encouragement to robbery. If, in the first instance, the Government had held the language that this question of purchase, being one concerning the discipline and organization of the Army, lay within the scope of the Royal Prerogative, and that, upon that ground, they did not intend to ask for a Parliamentary decision upon it; but that they intended to abolish it on their own responsibility as Ministers of the Crown, in preference to laying their proposal before both Houses of Parliament, and awaiting a discussion upon the subject—I say, that if they had in the first instance taken that course, whatever may be said of the legality or constitutional character of that course, that is a matter on which I should have desired the opinion of higher authorities than myself; but I could not have denied that that was a course of action perfectly logical, quite consistent, and which would very probably prove to be legal. What we have to complain of is, not that this matter has been dealt with by the power of the Executive, but that it has first been put nominally and ostensibly under our control and under the control of the other House of Parliament, and then suddenly and unexpectedly it has been withdrawn from us. I think that both we and the other House of Parliament have a right to complain that both they and we have been allowed for weeks and months together to discuss this subject, with the full understanding, and in the belief on both sides, that it was a subject on which the decision of Parliament would be taken and abided by; and that the Government have allowed both the other branch of the Legislature and ourselves to discuss the matter upon these terms, they knowing all the time that these discussions would go for nothing, and that they had the final decision in their own hands. That is a course of proceeding for which there is, as far as I am aware, no precedent in our political life. There is only one thing to which I can liken it. It is very much as if a solicitor who had been employed in the affairs of some person lately deceased were to allow two parties to go to law upon the merits of a certain will made by that deceased person, the solicitor having all the while in his custody a will of a later date by which to supersede it. The plea that is put forward for this certainly unusual course is—"Oh! think of the poor officers! Think of their suspense, and of the inconvenience to them, and of the danger lest they should lose compensation for the over-regulation prices!" I have never doubted or denied that if the matter dragged on through the whole of the present Parliament, if you went to a General Election under these circumstances, there might be a very fair question whether the over-regulation prices would not be imperilled, and for this reason—that the electors not having been consulted on the subject would not be held to be in any way bound by any vote that had been given by a former Parliament, or by any Parliamentary arrangement which had been made between Ministers and other Members of the House. It would be a fair argument to say that in the event of a General Election the over-regulation prices would be endangered, but to carry it further and to say—"We do not venture to hang up this matter for six months; we do not venture to come forward with a new Bill next year, because we have no security that the same Members of the same Parliament, who deliberately after weeks and months of discussion voted compensation for over-regulation prices, considering that compensation to be just, would do so again"—to say that those same men, Members of the same Parliament, would in the beginning of next year refuse a grant which they had voted eight or nine months before, would be to hold language which would be a severer censure and a sharper sarcasm on Parliamentary government than any I have ever heard. I sat for many years in the House of Commons, and I confess that I formed of that body a somewhat higher opinion than appears to be entertained by those who command a majority in it at the present time. [Earl GRANVILLE: No, no!] If, as I understand, the noble Earl opposite repudiates that ground, then I should like to know what other ground they have for acting in this singularly precipitate manner? If, as I now understand him to contend, there would no difficulty in obtaining the same terms next Session, then I say the Government have cut from under their feet the only plea, the only ground to which I can attach the slightest efficacy. I wish to put upon the act of the Government the best construction it will bear, and therefore I will not say that there was in the minds of the Government or in the minds of those who support them an idea of entrapping this House into a vote which, whether right or wrong, was sure to be unpopular out-of-doors, and would become ridiculous if the subsequent act of the Government rendered it nugatory. But I think, if necessary, I could find some justification for that view of their course in the language used by a Member of the Cabinet, for I noticed an ominous and significant remark that fell from a Member of the Government not long ago when speaking of another measure, and one of great constitutional importance, as to which there was "elsewhere" a question whether it should come up to us or not. That Member of the Cabinet said it was essential that the measure should be sent up to the House of Lords. Why? In order that it might be passed this year? No; but in order that on the House of Lords might be thrown the responsibility of its rejection. We now know, assuming the course of the Government to be legally and constitutionally right, that the decision of this House need not have been asked for in this question of purchase at all; but we were induced to vote upon it and to give a vote which to the great mass of the people would be in some degree unpopular; while another Bill is also to be sent up to us not in order that we may pass it, but in order that we may incur the unpopularity of rejecting it. If it were the case that anyone was leading an agitation against this House, and if for that purpose it was with him an object to weaken the moral influence and authority of this House, I say he could have taken no course more adroitly calculated to achieve that object than that which the Government have taken. The noble and learned Lord (Lord Penzance) says—"The action of the Government may have been good or bad; but, after all, what else could they have done?" If the Government chose by their mismanagement of affairs to put themselves in an utterly false position, are we responsible for that? If an undoubtedly embarrassing situation must result from their failure to obtain the support of this House to their measure, was that an event which it was entirely beyond their power to foresee? Was it not easy to make provision for it? There is no escape from the alternative. If they foresaw a difficulty they were bound not to put the Legislature and the country into that difficulty. If they did not foresee it that is another illustration of what we have often heard—that as "much mischief may be produced by well-intentioned blundering as by deliberate and designed wrongdoing." I think this step is bad as a constitutional proceeding, but that it is still worse as a precedent. Regretting, for my own part, that the Government should have adopted this course, and thereby have endangered what I consider to be a good cause, I do most heartily join in the Vote of Censure which we are asked to pass upon them. The noble and learned Lord appeals to our sense of practical utility, and, he says—"Whether the Government are right or wrong, what benefit will this Resolution effect?" I say the benefit will be this, it may not—it will not—produce a political change; it will not undo what has been done; but, at least, we shall have put on record our opinion that power does not constitute right, that astuteness is not statesmanship, and that sharp practice does not pay in the long run.


said, that when that debate opened, their Lordships were told that they should rather look to the interests of the public; but he feared they had fallen away from their first excellent intentions, and had now got into a complicated position, for from Army purchase and over-regulation they had roamed as far as the Constitution and the Bill of Rights. The noble and learned (Lord Romilly) had recommended them to call in the aid of the Judges; but he (the Duke of Somerset) thought that the public themselves would require to be the judges on the subject under discussion. Under the circumstances in which they were placed, what did the Government intend to do? If the Government had proposed to refer this question to public meetings during the autumn, he confessed that he thought they would have been liable to censure, for the merits of the question were too difficult and complicated for discussion at public meetings. Then, what course was to be taken? As many of the arguments in favour of purchase went to the maintenance of that system on principle, he saw no chance of amending the system, except by such a course as that taken by the Government; though he thought a little more time might have been allowed to pass after the vote come to by that House. He could not agree in the statement that the exercise of that power by the Crown was illegal, when there existed so many precedents of Royal Warrants regulating and, in some cases, abolishing purchase, and on that ground, he should vote in favour of the Government, though he could not have done so had the Resolution before the House been strictly correct. The Resolution spoke of "the interposition of the Executive during the progress of a measure;" but the fact was that that measure was practically put an end to by the vote to which their Lordships came. It has been candidly admitted that such was the object for which many votes at least had been given. Considering that the Cabinet and the majority of the House of Commons were in favour of abolishing purchase, he could see no other course for the Government to pursue than that which they had taken.


said, he voted for the second reading of the Army Regulation Bill, partly on the ground that he thought it desirable the Government should be free to proceed with the amendment of the military system, to which amendment they said purchase was an obstacle, and also because he thought that purchase itself could not be defended; and if he felt satisfied with that vote, he must say that he should be equally satisfied with the very different vote he was now going to give, because he could not approve the Government interposing in respect to a matter before Parliament. It appeared to him that the right hon. Gentleman at the head of the Government, having before the commencement of the Session decided to proceed in this matter by Parliamentary methods, had thereby limited himself to that course of action; and that the right hon. Gentleman should overrule an unsatisfactory vote by drawing a rusty Sword of State in the shape of a Royal Prerogative to cut through a difficulty was a step which could not be approved by any temperate observer of the forms in which Government should be conducted. Ministers might describe their action as the abatement of an illegality by a legal measure; but to others it must look like an unusual and arbitrary exercise of power, and as such it deserved what it would shortly receive—the just, censure of that House. It was a grave question whether such a power ought to rest in the hands of any Government; and having regard to the hand in which it now rested, it would probably be the duty of their Lordships to consider the question very soon. Though he voted on a previous occasion for the second reading of the Bill, he must now decline any further connection with such unsafe counsellors.


My Lords, if your Lordships had rejected the measure proposed to you without consideration, you would have been very much to blame; but that by no means being the case, I think Her Majesty's Government culpable for interposing in the discussion, and putting an end to the matter by an absolute exercise of the Prerogative of the Crown. As Peers of the Realm, we may be allowed to take as great an interest in the honour of the Army and the integrity of the kingdom as any of Her Majesty's Ministers or any Member of the House of Commons; and if that is so, then the question arises, supposing your Lordships to agree in the proposal contained in the Bill, what system of military organization should we put in place of that proposed to be done away with? It is well known that purchase in the Army has existed for a very long time, and the Act of 1809 was an Act confirming, by way of exception, the practice of the sale and purchase of commissions. I am, however, persuaded that it is expedient to abolish purchase because I think it wrong to let a young man entering the Army understand that his success in his profession must consist in having plenty of money to buy promotion. If, in proposing the abolition of purchase, the Government have neither provided a system of voluntary retirement nor put forward any other plan which would have ensured a proper flow of promotion, the result must be that you will have officers at the head of your regiments who are disabled by age and infirmity from commanding them properly. It was permissible, therefore, for the noble Duke opposite (the Duke of Richmond) and the House of Lords to ask what system would be substituted for that which was to be abolished. I believe the noble Duke made those inquiries not with a view merely to impede the progress of the Bill, but to obtain a good settlement of this question. "What," he asked, "is your plan for the retirement of officers? What is your plan for the amalgamation of the Army with the Militia and the Reserves? What are the other changes you propose with a view to give you an effective Army? After we know what you propose we will consider your Bill." We know both how desirable and how advisable it is to secure a good system; and I believe that if the Government had been really in earnest and had had a good plan, the House would have taken it into immediate consideration. If after the Bill had been passed by the House of Commons the Government had no plan whatever for rendering the Army efficient, then they were to blame for not having a plan. If they had such a plan then they were still more to blame, because it it is clear that if they had made up their minds they had nothing to do but draw up a clear memorandum, which, if placed before this House, would have been properly considered, and, if it disclosed a good plan, would have been supported by a majority. I must say, however, that I hardly expected the Government to adopt such a course, because they seem throughout to have had quite as strong an opinion as that of the Pope in their own infallibility, while those who differed from them were threatened with excommunication. As to the exercise of the Prerogative, it goes against the clear will of Parliament as set forth in the Act of 1809. No doubt you may say that, as purchase can only be made by the Queen's Regulations, you put an end to purchase if you abolish all the regulations. But that is not performing your duty in the way intended by Parliament; and you might as well say that if the Committee of Council proposed no further grants of money for the support of the State-aided schools, those schools should be put an end to. If you say that Ministers may act in such a case without an Act of Parliament, you give to the Prerogative of the Crown an arbitrary exercise which has never been seen since the reign of Elizabeth, and which would not have been attempted by George III. or William IV. If that be so, the responsibility of the Ministry is very serious. Such a use of the Royal Prerogative is one which no Minister is justified in advising, and that being so, I think this House is perfectly justified in giving its opinion that it is an undue exercise of the Prerogative, and ought to be strongly condemned. I shall vote, therefore, for the Motion of the noble Duke. Though this may not be a great emergency, it is a serious one, and the conduct of the Government may lead to mischief which, if not arrested in time, may be of the gravest importance to the country. I see that the newspapers which favour the stop taken by the Government taunt the House of Lords with being totally insignificant in themselves, and with having pursued a selfish course in regard to purchase. The Government, of course, do not share this opinion, but their conduct rather reminds one of Sheridan's lines— Whose spur insidiously applied Provokes the caper it affects to chide. Certainly that seems to be the effect of the Royal Warrant. In conclusion, in protesting against any such step as that proposed, let me quote lines which have been quoted before with reference to those who wish to destroy the House of Lords, and put an end to a Constitution which has given as much freedom and happiness as I believe any Constitution or any Government have conferred, or any people upon earth have enjoyed— Fond, impious man, thinkest thou that sanguine cloud Thy hand has raised can quench the orb of day? To-morrow he renews his golden flood, And warms the nations with redoubled ray.


said, he wished to say only a few words. He was glad to have the authority of the noble Earl who had last spoken (Earl Russell) in favour of the abolition of purchase, but questioned the construction he had put upon the Act of 1809. The object of that Act was to prohibit the sale of offices, and to limit and control the purchase or sale of commissions, and visit with condign punishment all who dealt with commissions in any other way than that fixed by the regulations from the Crown. If that construction were correct, the position of the Government was different from that described by the noble Earl. It had been proved that the regulation prices were inseparably linked with the over-regulation prices, and as the latter involved the improper practices which it was the object of the Act of 1809 to restrain, it followed that the exercise of the power of the Crown for the purpose of withdrawing the regulations which alone made the purchase and sale of commissions legal was in complete accordance with the spirit of that Act. With the exception of the noble Earl, and some others, the whole opposition to the Government Bill had come from the supporters of the system of purchase; the Motion of the noble Duke (the Duke of Richmond) which had been already passed, was based upon the maintenance of the same system, and there was no attempt to propose any alternative plan. The noble Earl (the Earl of Derby) who to-night had answered arguments which were never used by the Government, had on a previous night, in a remarkable speech, said that purchase might be abolished independently of Parliament; that the system was doomed, and that he did not see what was to be gained by delay. And according to the noble Earl, purchase having been abolished by the exercise of the power of the Crown, a Vote might have been taken in the House of Commons for the payment of over-regulation prices. To-night, however, the noble Earl gave their Lordships to understand that the suggestion which he had made in his speech on the second reading was one that could not possibly be carried into practical action.


What I said was that there was high authority in favour of the course of which the noble Lord (Lord Northbrook) speaks as being a legal course; but I did not say a word as to its being a course which in my opinion it would be right or wise to adopt.


The noble Earl seemed to admit the course would be a legal course, and he (Lord Northbrook) saw no reason, therefore, why he should be at all surprised that it should be adopted. Be that as it might, the noble Earl had stated that, if the course taken by the Government in abolishing purchase had been taken some time back, his objections would probably not have been so great as those which he had that evening expressed. But he entirely forgot that both the right hon. Gentleman at the head of the Government and the Secretary of State for War had held the most unmistakable language on the subject in the House of Commons. They said the abolition of purchase must, in the opinion of the Government, be carried into effect without delay, and that an Act of Parliament was necessary for the purpose, only in order that full and liberal justice might be done to the officers of the Army. He (Lord Northbrook) had made the same statement on moving the second reading of the Army Regulation Bill. When, therefore, noble Lords opposite spoke of the course which the Government had adopted as a surprise, he (Lord Northbrook) had a right to maintain, on the contrary, that the objection which they took to it was a novel objection which had never been raised during the discussions in the other House of Parliament, or during the three long nights of debate in their Lordships' House. He must add that the Government had received that evening very few suggestions as to the course which they should have pursued. One of those few, however, was made by the noble Marquess opposite (the Marquess of Salisbury) who appeared to be more strongly impressed than many of those around him with the difficulties which stood in the way of continuing purchase after the strong expression of opinion contained in the Report of the Royal Commission, with respect to the existence and effect of over-regulation prices. The noble Marquess said he would, not complain if the Government had taken steps to put a stop to over-regulation prices, and that the course he would have advised was that the Government should accept the rejection of the Bill and then proceed to take measures to do away with those prices.


Compensation being given to the officers.


But how would the noble Marquess have compensated the officers? By a Vote of the House of Commons?




If they had taken that course they would have placed the House of Commons in the position of awarding compensation for practices which were illegal by statute, and that entirely without the sanction of the House of Lords. But how would the noble Marquess reconcile that course with that dignity which properly belonged to their Lordships' House, and of which he was so strenuous an upholder? To him (Lord Northbrook) it appeared that to render practices legal by the mere vote of the House of Commons which were by statute illegal would be to inflict a grave insult on the House of Lords. And how, he should like to know, did the noble Marquess propose to carry out his suggestion that over-regulation prices should be prevented? Was it to be a sham or reality? If it was to be merely a brutum fulmen, no Government ought, he maintained, to act in a manner which would be so unworthy of its position; while, if it were to be a reality, it could be secured only by changing the whole system of promotion in the Army, and sweeping away that regimental system of which noble Lords opposite were such strenuous supporters. It was impossible, as anyone who had looked carefully into the question must admit, to abolish over-regulation prices without abolishing regulation prices also, and in the Report of the Royal Commission it was distinctly stated that they must fall together; while, in addition, the experience of two centuries pointed in the same direction. The result of the suggestion of the noble Marquess would be that the dignity of the House of Lords would be supported at the expense of the officers of the Army; for the officers would be unable to get that compensation for their equitable claims which had been recognized by both Houses of Parliament, and which he was sure were recognized also by the good sense and good feeling of the whole country. The plan of the noble Marquess was the only alternative plan which he had heard recommended in the course of the discussion, and he should not dwell further upon it, nor endeavour to enforce the arguments which had been so ably urged by his noble Friend the Secretary of State for Foreign Affairs in support of the policy of the Government. He would simply add that while he did not share the high responsibility of the Members of the Cabinet in reference to the question, he would accept his own share of any censure which their Lordships might think it right to pass on the Government with the conviction that they had taken the only course which they could possibly take with a due regard to the public interest, to the equitable claims of the officers of the Army, and to the necessity of putting an end to a notorious violation of the law.


While the noble Lord who has just sat down (Lord Northbrook) is endeavouring to ascertain with accuracy the proper description of the feelings with which he will accept the censure of this House, I will venture to call the attention of your Lordships to some important admissions which have been made in the course of this debate. The noble Duke the Secretary of State for India (the Duke of Argyll) has informed us that on this question the conduct of the Government is absolutely without precedent. That is a serious statement, coming from one of Her Majesty's Ministers. When at this advanced period of our history the conduct of the Government in an important act of government is found to be absolutely without precedent, it certainly seems to me that it behoves your Lordships critically and narrowly to examine the grounds for the justification of that conduct. But I must, at the outset, point out another circumstance, in respect to which the position of the Government appears to me to be also without precedent. The Motion which has now been submitted to your Lordships has been properly described as a Vote of Censure on the Government. That Motion has been resisted by various Members of the Ministry, but resisted by only two Members of your Lordships' House who do not hold place in the Government. One of those noble Lords is my noble and learned Friend opposite (Lord Penzance); and what did he say? Borrowing a phrase which I am told is not uncommon in his Court, he spoke of the "impropriety of the conduct of the Government," adding that he was fully alive to the weight of the arguments which had been adduced as to that impropriety. Another advocate of the Government was the noble Duke opposite, who was formerly at the head of the Admiralty (the Duke of Somerset). How did he support them? He thinks the act which we propose to censure might have been better done and with more temper; and that if the Resolution of my noble Friend behind me (the Duke of Richmond) did not happen to contain the words "during the progress of a measure," he would not give his vote in favour of the Government.

But there was another admission made by the noble Duke the Secretary of State for India (the Duke of Argyll), on which I wish to say a word. He told us that the act of the Crown was, indeed, an act of Prerogative, but that it was an act of Prerogative fortified by statute; and my noble and learned Friend who supported the Government (Lord Penzance) stated that he did not object to its being called boldly an act of the Prerogative, if by that it was meant the absolute right of the Sovereign to deal with the Army in any way she may think fit. There is, at all events, some advantage in transferring a question of this kind from the festive and airy atmosphere of after-dinner rhetoric into an arena where arguments must be adduced, and where they may be answered. I rejoice at the progress which the Government have made within the last ten days with respect to this subject. Not more than ten days since we had a blank and positive denial that the question of the exercise of the Prerogative was involved in the Royal Warrant. The Sovereign, we were told, had not been advised to exercise her Prerogative; it was merely the performance of a statutory duty which was imposed on the Sovereign by Act of Parliament. Now, forsooth, we have got the admission that it is Prerogative, but Prerogative fortified by statute. We must go a little further, and I, for one, do not despair of the absolute conversion of the noble Duke himself (the Duke of Argyll) before this discussion is over, so great is the progress in learning which he has made within the last ten days.


I said nothing ten days ago.


Then did the noble Duke, some nine or ten days ago, dissent from the views which were expressed by his noble Colleague who represents the Government in this House? But, be that as it may, it is well that we should try to clear up at the outset the question whether the Act which we are discussing is an exercise of a statutory right by the Crown, or the exercise by the Crown of its Prerogative. I do not know that I could confer a more fatal gift on the Government than to admit to them that it was the exercise of a statutory right. In that case I should be prepared to endorse all that was so well and strongly said by my noble and learned Friend opposite (Lord Romilly), and to maintain that the Act was positively illegal. It would be perfectly fatal to them. What is a statutory right? The question is not one of law—it is a question of common sense, depending on the meaning of two or three words, on which any of your Lordships is as competent to form an opinion as any lawyer in this House. The Act of 1809 says that— Nothing in this Act contained shall extend to any purchases, sales, or exchanges of any commissions in His Majesty's forces, for such prices as may be regulated by any regulation made or to be made by His Majesty. Let me concede for a moment that this is a statutory power conferred on the Crown. But what is it a statutory power to do? Is it a statutory power to abolish purchase? Nothing of the kind. It is a statutory power to regulate prices. It assumes that there will be purchase, and it gives to the Crown, on the hypothesis that there is to be purchase, the right to regulate the prices that are to be given. I will suggest to your Lordships a few out of the numerous illustrations which might be adduced upon this part of the subject. Suppose we were to go back to the days when it was the fashion of the Government to regulate the price of bread, and suppose you had a statute authorizing the Executive—I beg pardon for using the expression; but I console myself with the reflection that during the speeches of the noble Earl (Earl Granville) and the noble Duke (the Duke of Argyll) they five different times used the expression in the same sense as it is employed in the Resolution—suppose, I say, that power was given to the Executive by Act of Parliament to fix the price at which bread was to be sold, and that there was a clause that the selling of bread over that price would subject the seller to penalties. I want to know would that entitle the person who has the power to regulate the sale of bread to say—"There shall be no prices for bread for the future?" There is at present another power—one probably possessed by the noble Earl (Earl Granville) as Warden of the Cinque Ports — to regulate the number of pilots to serve a port. But what would be thought of the authority that should say that for the future there should be no number whatever defined, and that no pilots would be authorized to serve the port? The subject is hardly worth pursuing; but if I conceded that the Crown had no authority for this proceeding but the words of a statute, the Government would stand convicted of having advised the Sovereign to exercise a power which they had misconstrued, and which would therefore be void.

But it is not the case—and the second thoughts of the Government are much better than the first—that this is the execution of a statutory power. What was the Act of 1809? In 1809 the system of purchase had existed undisturbed for upwards of a century. The Crown exercised its right to fix the prices of commissions—there was no question about that right. And here I ask your Lordships to bear in mind what the essence and characteristic of Prerogative are. Prerogative is a power not conferred by statute. That is what makes Prerogative differ from every other power in this country. This right had existed, and had been exercised by the Crown, independent of Parliament, for upwards of 100 years. Then came the Act of 1809, which contained a saving clause, and, as your Lordships well know, a saving clause preserves, but never creates rights. The clause in question did not add to the Prerogative of the Crown; it did not take from the Prerogative; it did not create it. It took the Prerogative as it found it, and left it as it found it. It is said that the Act of Parliament recognizes the Prerogative. Of course it did. But is that the creation of the Prerogative? I will undertake to produce a score of Acts of Parliament which recognize the Prerogative of the Crown to create Peers; but is the right to create Peers a right conferred by an Act of Parliament? I might produce a score of Acts of Parliament recognizing the right of the Crown to create Privy Councillors; but is it to be pretended that the Crown derives that authority from such Acts?

But, my Lords, this introduces us to a very grave question, and one as to which it appears there certainly is no precedent. I venture to think that it makes all the difference in the world whether the act of the Crown in this case was a statutory act or a Prerogative act. If it were the case that in 1809 Parliament imposed on the Crown the power of saying whether purchase should continue in the Army or not, then Parliament delegated to the Crown not only the right, but the duty of solving that question. For the Crown to exercise such a right would not only have nothing extraordinary in it, but would be simply pursuing the course which it was directed and encouraged by Parliament to pursue. But if, on the other hand, the act was an act of Prerogative, the characteristic of which is that it is a power not authorized by Parliament, then at once come upon the surface all those questions as to the expediency, the policy, the precedent for exorcising that Prerogative. I will refer, as a proof of this, to what passed only nine or ten days ago. I observed that both in this House and "elsewhere" the Government recoiled from the charge that there had been any act of the Prerogative in this case. In fact, the Government at the outset, by deprecating the very mention of Prerogative, confessed that they could not justify their act unless they made it out to be the execution of a Parliamentary power. Here are the words of the right hon. Gentleman at the head of the Government— The right hon. Gentleman (Mr. Disraeli) says that the Government have fallen back on the exercise of the Prerogative; and, having thus introduced the term which he thinks will be unpopular, though he expresses a hope it may long exist, he warns us against the danger of putting Prerogative in conflict with Parliament. Sir, this is an instance of the inaccuracy of the right hon. Gentleman's statement. We have had no recourse to Prerogative, and we have had no conflict with Parliament. And what did the noble Earl opposite (Earl Granville) say? He said— Your Lordships adopted the Resolution of the noble Duke (the Duke of Richmond) with which we are all so well acquainted; and Her Majesty's Government had to consider both their bounden duty—for they agreed in every word Sir George Grey had said—and also the enormous inconvenience which would occur to the Army itself, and to all the arrangements connected with it, from any delay or uncertainty in this matter. The result of that consideration has been to advise Her Majesty—not to make any use of her Royal Prerogative, because there is no question of that in this matter—but in the exercise of that discretion which is conferred upon the Crown by statutory enactment to take the only means which is possible to put an end to the illegal practice which has thus been denounced; and I may add that Her Majesty has graciously consented to sign a Warrant this day which cancels the regulation that sanctions prices being paid for the sale, purchase, and exchange of commissions. Then the noble Duke (the Duke of Richmond) said— I understood the noble Earl to state that Her Majesty in the exercise of her Prerogative— Earl GRANVILLE: Nothing of the kind. I distinctly stated that it was not done by Her Majesty in the exercise of her Royal Prerogative, but by power conferred on the Crown by statutory enactment. …… The Marquess of SALISBURY: I think it would be well if your Lordships were put in possession of a written statement of the proceedings of the Government, in the shape of a copy of the Royal Warrant that has just been signed by Her Majesty in the exercise of her Prerogative. …… Earl GRANVILLE: I cannot imagine any objection to the suggestion of the noble Marquess, and I will produce a copy of the exact terms of the Warrant. The noble Marquess, notwithstanding my repeated explanations, still talks of the Queen's Prerogative; perhaps he thinks it gives a more invidious character to our proceedings so to describe it. In fact, we can have nothing more clear or distinct than this — that when this Warrant was executed the Government were under the impression that it was not an exercise of the Prerogative, but a statutory right, and that the advice given to the Sovereign was, that the Queen was not making use of her Prerogative right. Now there is one thing very clear in our Constitution — the Queen can do no wrong; and another thing equally clear is that it is to the advice given by Ministers that we are to look for responsibility. But a third maxim which we shall find in every text book of Constitutional Law is that the Crown is not to be deceived in the character of the act which it performs. I said that the act was without precedent, and the Government must choose between two alternatives. There was but little interval in this matter for the advice tendered to the Crown. The division was taken on Tuesday, and the Royal Warrant was executed on Thursday—an interval of 48 hours. The noble Earl opposite has spoken of haste with regard to this Resolution; I want to know what language he would use with regard to the haste in issuing this Royal Warrant? The Ministers must take their choice between these two alternatives; either there was no advice whatever tendered to the Sovereign as to the character of the Warrant, or else the advice tendered was what the Government stated in this House to have been tendered—namely, that the Sovereign was signing this Warrant, not in the exercise of her Royal Prerogative, but in execution of a power and duty reposed in her by statute. That advice, I maintain, was not warranted by fact, and we have got here what is absolutely without precedent, a Government convicted—and convicted on their own confession—of having, upon an important crisis, not intentionally, not wilfully, but in sheer and now admitted ignorance, misrepresented to their Sovereign the character of the act which she was called upon to perform, and of having advised her that she was merely exercising a statutory power, when in reality she was performing an act of the most stringent Prerogative.

Then, my Lords, I ask is this act of the Prerogative a constitutional act? I do not ask whether it is operative, because I have no doubt it is, and that is the circumstance in Prerogative acts which properly brings them under the consideration of Parliament. If the Sovereign were to place her veto, by the advice of her Ministers, upon a Bill that passed through the two Houses, that veto would be operative, but no one would deny that it would be unconstitutional. If the Sovereign were to withhold from her Army the pay voted by Parliament the act would be one within the power of the Sovereign, and would be legal, but it would undoubtedly be unconstitutional. If the Sovereign were to increase, out of her own resources, the pay of the Army beyond what was voted by Parliament, there could not be a doubt but it would be legal, though it would be equally beyond doubt that it would be unconstitutional. So, I say, with regard to this act. It is perfectly operative. I do not see that any remedy exists against the consequences of it in our Courts of Law; but it is for your Lordships to consider whether it is constitutional. Again, if the Sovereign were to cancel every commission of every officer in the Army, it would be operative and legal, no doubt, but I apprehend that it would be also unconstitutional. Nothing can be more irrelevant than the production to-night of those two or three Warrants to which the noble Earl opposite (Earl Granville) referred, Warrants advised by the Duke of Wellington for authorizing the officers of a non-purchase to sell to a purchase corps, and another to abolish purchase in the corps of Yeomen of the Guard; or the Warrant in 1854 during the time of the Crimean War, apparently for the purpose of working out some private arrangement between officers of the Guards. What have these to do with the general system of purchase? Be it good or be it bad, it has continued in the Army for upwards of 200 years. I quite admit it is a system built up by Royal will and by the exercise of the Royal Prerogative, and what have been the consequences? I remember how the system was described on a late occasion by Mr. Goschen, who said— Such is the state of things brought about by the system of purchase that the Army is not the Army of the nation, but the Army of the officers. And the noble Lord the Under Secretary of State for the War Department (Lord Northbrook) said, not many days ago, that the system of purchase had created a spider's web of vested interests which had gathered around the Army and prevented any interference on the part of the Government for the objects they had in view. My Lords, if these statements are accurate, then I maintain, as a maxim of Constitutional Law, that although Prerogative may build up, it does not follow as a correlative proposition that Prerogative may destroy. I maintain that when a system has been built up which has struck its roots deep, which has spread itself through the whole of our social system, which has involved the expenditure and investment of millions of money; a system which it has been said—I do not stop to inquire into the truth of that assertion—has made the Army the Army not of the nation, but of the officers; a system which has spread around the Army a spider's web of vested interests—if all that is true, I maintain that the time has passed for Prerogative, as Prerogative, to overthrow the system which it has thus created. I cannot help recollecting an observation of our admirable historian of the Constitution, Mr. Hallam, in one of his pages in considering the power of Parliament over this country. He says, very truly, that it is a great mistake to suppose that the best definitions of the power of Parliament are to be found since the Restoration. He takes you back to a Statute of Edward II., and says there is a definition of the occasions where Parliament has intervened to be found in that statute which is the truest expression of the limits of our Parliamentary Government, and of those occasions when there ought to be an exercise of our Parliamentary powers. And what does that statute—the 15th of Edward II.—say? It says in the quaint language of the times— The matters to be established for the estate of the King and of his heirs, and for the estate of the realm and of the people, shall be treated, accorded, and established in Parliament by the King, and by the assent of the Prelates, Earls, Barons, and the Commonalty of the Realm according as has been before accustomed. I maintain that is a constitutional principle; and if it is the case, as one of your own Ministers has said, that the Army which ought to be the Army of the nation has become the Army of the officers, I maintain that that is a point upon which Parliament should intervene. If that state of things has been brought about by the Prerogative, it is a state of things to be redressed not by the Prerogative, but by Parliament. And the reason is obvious. It is impossible that Prerogative can overthrow that system which it has built up, and at the same time do perfect justice to all the rights which have been thus created. Nothing short of Parliament can exercise that power. There is a saying which I always look upon as one of the greatest force—that error is infinite, and when once you engage in a course of error it is difficult to enumerate the evil consequences to which that course will lead. Let me point out some of the consequences to which the course taken by the Government must necessarily lead. In the first place, you have advised the Crown to break faith with the officers of the Army. Remember, you have advised the Crown to stop purchase in future; you have advised the Crown to stop exchanges; you have made the Crown bear the ungracious responsibility of breaking faith with the officers, and at this moment you have no certainty that the money which ought to be repaid to the officers will be repaid. You may speculate about it, you may expect to get it; but you admit that you cannot ask for it by a mere Vote of the House of Commons. I do not think it would have removed the difficulty if you had had an Address of the House of Commons. But you have not had an Address of the House of Commons. In your hot haste, which my noble Friend (the Duke of Richmond) so well described—in your want of temper, you hurried on to obtain this Warrant of the Crown, without even waiting for the ceremony of a Vote from the House of Commons. Well, what is the next consequence? You say you have done nothing to affect the independence of Parliament. My Lords, do you think that we can discuss a measure fairly and independently when we are told that if we do not pass it the interests of the officers, to the amount of several millions of money, will be sacrificed? Do you think that is a fair way to ask Parliament calmly and temperately, and without prejudice, to discuss a legislative measure, when it is weighted with the certainty that if rejected it must involve a loss of £7,000,000 or £8,000,000 to deserving men? But is this all? You have taken great trouble, and taken up a position which you admit is altogether without precedent, and, after all, you have not abolished purchase. You admit that if this House refuses to take the responsibility, you cannot insist upon retaining the clauses of the Bill abolishing purchase. All that you have done by this violent strain is to produce a temporary suspension of purchase, leaving it in the power of some future Minister to renew it. [Laughter.] Noble Lords opposite may laugh, but they are more skilful prophets than I take them for if they can foretell what step an impatient people may be unduced by some future Liberal Minister to take, in a moment of financial difficulty, rather than provide £8,000,000 or £10,000,000 under this Bill.

But, my Lords, I ask your Lordships to consider the effect as regards the position of this House. I concurred cheerfully with the majority of your Lordships' House, some ten days ago, in affirming the Resolution proposed on the second reading of this Bill, but I did not do so because I was anxious to maintain purchase. I speak here with some diffidence of my own opinion, and I speak for myself alone. But I candidly confess I do not like purchase in theory, and I would make a very considerable sacrifice to get rid of it. But, in the first place, I should like to know what is the sacrifice I must make to get rid of it; and, in the second place, I should like to know the system which is to do the work which, beyond all dispute, purchase has hitherto done. I recollect that in the month of February last the right hon. Gentleman the Secretary of State for War, when introducing the Army Bill, said on this point that special regard would be paid to selection. But the noble Duke the Secretary of State for India tells us to-night that the idea of laying down rules for selection was pure nonsense. This is the noble Duke's view. What was the view of the Secretary of State for War? The right hon. Gentleman in February last referred to the question of selection, saying that he would not go into details because, with the view of the utmost security being offered to the officers of the Army for the impartiality and fairness of promotion, these details were under the consideration of some of the most eminent officers of the Army—and I think he mentioned the name of an officer whom we are all glad to see in this House, and who was then Sir William Mansfield. I think that was very reasonable in the month of February. But we had arrived at the month of July, and when the main question connected with the abolition of purchase was what was to supply the place of purchase, and by what rules was to be guarded that arbitrary selection which was to take the place of purchase. I naturally asked myself how had these details been dealt with by these eminent officers? And I could only come to this conclusion—either that the details were in the possession of the Government, and that they would not produce them, or else that these eminent officers had given the question up in despair. I venture to think I adopted a course which was entirely in my power, and entirely constitutional, and entirely a sincere course, when I called upon the Government, before assenting to the second reading of the Bill, to produce these details which I found promised in the month of February last—a promise which has never been fulfilled. I speak, then, without any prejudice against a measure for abolishing purchase; but, I ask, what is the effect of the course taken by the Government upon our position as one of the branches of the Legislature? In February last the following words were put into the mouth of the Sovereign by Her Majesty's Government:— No time will be lost in laying before you a Bill for the better regulation of the Army and of the auxiliary land forces, and I hardly need to commend it to your anxious and impartial consideration. That language, interpreted according to customary usage, meant that Her Majesty, through her Ministers, intended to lay a measure on the subject before Parliament for their consideration. This measure having been debated for some months in the other House as a Bill for the abolition of purchase, it is all very well for the Government to say now that the abolition of purchase was but a very small part of their whole scheme. The noble Lord opposite (Lord Northbrook) appears to have forgotten the language, with which we are all familiar, which was used by Ministers in the other House when they were charged with having thrown away all but a mere fragment of their original Bill. In reply to that accusation they pleaded that the measure was essentially one for the abolition of purchase, and that as such alone they were anxious to pass it through Parliament. The measure having been debated in the Lower House as a Purchase Bill is introduced into this House as a Purchase Bill, and treating it as such, it was, both technically and in substance, not rejected by your Lordships. You expressed an opinion—which you had a perfect right to express—that the passing of the measure should be subject to the production of certain details, which you deemed essential to the safe working of the measure. I maintain that the continuance of this measure after the vote of this House was entirely at the option of Her Majesty's Government, who, after laying before us the details of their scheme for the re-organization of the Army, might at any moment have asked your Lordships to proceed with the second reading of the Bill. But, instead of laying before us the details of their scheme, they think proper to refuse to let us know anything about them, and proceed to set aside our decision, and to deal with the matter by Royal Warrant. On this point I ask your Lordships to hold, as an important constitutional proposition, that when the Crown has placed any of its Prerogatives at the disposal of Parliament, as was done in the present instance, it is contrary, I will not say merely to constitutional principle, but to good faith and to common fair dealing on the part of the Government afterwards to withdraw from the consideration of Parliament the measure affecting such Prerogatives. And, my Lords, observe the invidious position in which the Government place the Crown. If there be one case in which the Prerogative of the Crown should not be exercised, it is where its exercise would amount to an interference between the two Houses of Parliament. Here, at least, is a case in which the Crown should be passive. But the Government have, in their hot haste, brought the Prerogative of the Crown into action, in order to enable the majority of our House to triumph over the majority in the other.

Now, my Lords, let us see what are the defences put forward on behalf of the Government in this matter. It has been said that, at all events, they have obtained the consent of the House of Commons to their acts. I deny that proposition altogether. Although not a Member of the Liberal party, I hope I am able to do full justice to the principles that have always actuated them. I fully recognize the great part which they have played in the history of this country, and in our struggles for freedom; and however much we may differ on questions that may arise from time to time, we ought not to forget that we are all citizens of a common country, and that those liberties of which we are all so proud have been obtained, not by the action of one party, but by that of both parties, and that the Liberal party have in those struggles borne an effective and a noble part. When I look at the traditions of the Liberal party I, for one, will not believe—whatever vote may be extracted from the House of Commons with regard to a past and executed act of the Government—that if the question had been submitted to them originally whether purchase was to be abolished by the mere exercise of the Royal Prerogative, they would have approved such a course being adopted. They would rather have said—"We have confidence in the Parliamentary constitution of this country, and we desire that this great act of State should be accomplished through the medium of an Act of Parliament. We are prepared to stand by that measure, and we feel satisfied that the arguments in its favour will prevail, and we do not want the Royal Prerogative to be taken down from the rusty peg on which it has been suspended for centuries, in order to effect that which can be carried out by means of the ordinary course of Parliamentary legislation." But, my Lords, if Her Majesty's Government, failing to support this exercise of the Prerogative upon its own merits, are thus compelled to call in aid the consent of the House of Commons, what they are supporting is not the Prerogative of the Crown, but that of the majority of the House of Commons. If that is the Constitution under which we live, it is a dictatorship: a dictatorship subject to control, no doubt, but subject to no control beyond that of an accidental majority of the House of Commons for the time being. I hope that the Liberal party, in considering this question, will recollect that the Prerogative which may be used by one Government for one purpose may be used by another Government for another purpose, and that they will take to heart the position in which the liberties and freedom of action of the people of this country will be placed if those who may happen, for the time being, to form the minority of the House of Commons are to be over-ruled by the Government of the majority putting in force the Royal Prerogative against them. Far be it from me to suggest that the Government, in the course they have taken, have had any intention to insult this House. In the happy innocence of after-dinner oratory a remark fell from my noble and learned Friend on the Woolsack the other night at the Mansion House, before any suggestion had been made on the subject, to the effect that the Government never intended to insult the House of Lords. My Lords, I can relieve the mind of my noble and learned Friend. I do not say that no insult has been offered; but it is not an insult to this House. It is an insult to the Constitution of the country.

But what is the next defence of the Government? They say it was utterly impossible that the Government could any longer consent to wink at an open violation of the law. I am a lawyer, and I should be the last to speak lightly of any violation of the law; but I should like to ask the Government when this new-born zeal in favour of the law first arose. Did it arise when this Bill was first introduced into Parliament? Certainly not; the Bill was introduced for a totally different purpose—in consequence of the pressure on the Government, exerted by the nation, which demanded that the forces should be re-organized, and which in no way troubled itself as to whether certain particular officers had or had not violated the law. Did the right hon. Gentleman the Secretary of State for War refer to this violation of the law in his speech in introducing the Bill? Certainly not. He dwelt upon the importance of welding our national forces into one homogeneous Army; but not a word was said about the illegality of the sale of commissions. In fact, the first we ever heard upon the subject was on the occasion of a critical division in the House of Commons on the third reading of the Bill, when both the right hon. Gentleman at the head of the Government, and the right hon. Gentleman the Secretary of State for War, in very large and weighty sentences, first declared that it was impossible that the Government could any longer wink at the sale of commissions at prices above those fixed by Royal Warrant. But we may ask the question, how was it that those over-regulation prices were made illegal? They were made illegal for the first time by the Act of 1809, which armed you with powers for preventing and checking the illegality. In all conscience those powers were sharp and decisive enough. By the exercise of those powers, you might have degraded the officer; you might have tried an officer by Court Martial and prevented him from ever again holding a commission; and, finally, if you so chose, you might have indicted him criminally for misdemeanor. I do not challenge the opinion of the Royal Commission, that as long as you had regulation prices it would be difficult to put down the over-regulation prices; but I want to know where is the foundation for all this new-born sensitiveness and conscientiousness on the part of the Government? The only act which made the taking of over-regulation prices illegal armed the Government with certain powers for preventing that illegality. If those powers were sufficient, you could not want anything more; if they were not sufficient, your course was to come to Parliament and say that they would not accomplish the ends that Parliament had in view. But what right had the Government to resort to a coup d'état, and to call into requisition a Royal Warrant for abolishing purchase altogether? This illegality was an after-thought on the part of the Government when they were in a difficulty about the passing of their Bill.

But what is the next excuse? The noble Duke (the Duke of Argyll) says—"The Government had this object in view—to save Parliament from a repetition of scenes not creditable to the House." What does that mean? I hope he does not mean this House. Have there been any scenes in this House? I suppose the noble Duke means "scenes not creditable" to the other House. Your Lordships are not supposed to be aware of scenes which occur in the other House, and I do not think you have ever been constituted judges as to whether scenes occurring in the other House were creditable or not. I had the honour of a seat in the other House of Parliament for many more years than I have sat in your Lordships' House. I look upon the other House of Parliament as the grandest Representative Assembly in the world, and I would rather suffer any penalty than be a party to any act which would detract from the dignity or authority of the other House of Parliament. I have been in that House in times of stress and difficulty, when parties were much more evenly matched than they are now—when a Government had a much smaller majority than has the present one; but I never saw scenes that were "discreditable," and if it is true that such scenes have occurred in the other House of Parliament, I, who have some experience of that House and of Leaders of the Government in that House, cannot help thinking that there must be some reason connected with the manner in which that House is led which leads to scenes being enacted that none of us have witnessed, but which are reported to us by a Secretary of State. Whether there be scenes or not—and God forbid I should say there are—I must protest against your Lordships being made the victims of a coup d'état, in order to correct scenes that occur in the other House of Parliament.

Is there, then, any other defence? It is said that this act was done on the responsibility of the Government. I do not know that any act of arbitrary power that has ever been done in this country has not been done on the responsibility of those who did it. Lord Halifax—I do not of course mean the noble Viscount opposite—issued General Warrants on his own responsibility; but I never thought that that made General Warrants any the better. We are informed that the noble Viscount was the envoy of the Government to procure the signature of the Sovereign to the present Warrant. I wonder much that, as the noble Viscount went upon his errand, it did not by chance occur to his recollection that within little more than a century he was both bearing the title and following in the steps of a former Lord Halifax.

"After all," says the noble Earl (Earl Granville) "your censure will not do us much harm; you are going to read the Bill a second, time." My Lords, this at at all events is neither a defence nor an excuse. It is the refuge and consolation of those who have no defence to offer and no excuse to make. I do not grudge the Government their refuge, and I do not envy them their consolation. Read your Bill a second time; but take with it the mark, the censure, the condemnation of this House—censure and condemnation which I am persuaded will be approved by the deliberate opinion of the country, and confirmed by the verdict of history—censure and condemnation, that, at a crisis which demanded the wisdom and forbearance of statesmen, you have, with the petulance and recklessness of children, in order to obtain the apparent and unreal triumph of the moment, permanently, violently, wantonly strained, and discredited the Constitution of your country.


My Lords, I must crave your Lordships' indulgence, this being the first time I have addressed you on any subject connected with the Army, and having sat as a silent listener during 36 hours of your Lordships' debates on this matter rather more, I confess, as a conscript than as a Volunteer. I then thought it right to abstain from intruding on a subject with which I was not familiar, but now we meet on other ground. Thankful am I that the noble and learned Lord who has just spoken (Lord Cairns) rejoiced that we had arrived at a stage of the argument when we could discuss calmly the legal questions that are before your Lordships' notice, and I will deal with them in the first instance, though I shall not forget some passages which have occurred in the course of the debate, and which I would rather not have heard; for, although in this controversy they must be left unanswered by me, they must not be unnoticed. As regards the legal position, the noble and learned Lord twitted us with standing here as culprits at your Lordships' Bar with none to speak in our favour but two, who damaged our cause by the want of warmth in their defence. I am sorry to add one to the number of culprits who are called upon to speak in their own defence, and in doing so I would impress upon the noble and learned Lord that the question of purchase was condemned by the Members of other Governments beside the present. The noble and learned Lord also said that we have advanced prodigiously in our argument on the legal point since we began this discussion; but I hope to lead you still more clearly to our conclusion. Whoever drew up this indictment against us, it is not altogether within the ordinary accuracy of legal language, for it talks of Her Majesty and the Executive without saying one word as to Her Majesty's Advisers; but putting that aside, we know what its real intention is—that it is meant for the purpose of attacking us, and we accept the Motion as intended for that purpose. In doing that, the whole offence should be stated, yet what has been the case? In the most fervid passage of the noble and learned Lord's oratory, when he raised himself to a pitch of indignant denunciation, he said the Government were convicted on their own confession, though by whom made or when I have not the slightest idea. As to our having poured into the Royal ear advice which was inconsistent with the facts, what is the case? There can be no doubt that from the time of Charles II. the sale of commissions in the Army became prevalent. No doubt the Crown exercised its Prerogative, and took upon itself to continue those sales; but, at the same time, in 1721, a Royal Warrant expressly declared that, although this liberty had been given to purchase, it did not include any liberty to sell. I mention that as a simple and conclusive argument against what the noble and learned Lord has said. Then came the Act of 1809, which struck at the sale of commissions in a certain way, stating that it should not apply to the sale of commissions where the Crown had fixed a price, and where no more than the fixed price was given; but parties going one step beyond that price would be guilty of misdemeanour, liable to be cashiered, and rendered unable to serve Her Majesty. Can anyone doubt that that Act struck at the sale of commissions? It provided the Crown with a dispensing power; but if the Crown said nothing, then no sale of commissions could be made. The noble and learned Lord, in connection with this part of the case, said we must have told Her Majesty that she was not exercising an act of her Prerogative but an act of power. But that is not in accordance with the language of the Warrant, and I apprehend that we are not guilty of the charge which has been brought against us. I grant, however, that there was a question as to whether this is a desirable or an undesirable exercise of the Prerogative. How stood the case at the beginning of this Session? The Army Regulation Bill was introduced, and then, said the noble and learned Lord, nothing was stated about over-regulation prices. But the fact is, that the Royal Commission in the year before reported on that subject, and the Government Bill proposed to indemnify those who had committed themselves by paying over-regulation prices and were by law entitled to no compensation. That was the case with regard to over-regulation prices, and the Bill also prohibited regulation prices for the future. Well, it is said that, having introduced these provisions into the Bill, we were bound to abstain from exercising the Royal Prerogative. But it should be borne in mind that the purpose for which those provisions were put in the Bill was to prevent some future Minister replacing the whole matter in the same state as it was before. We had a great and important duty thrown on us at the commencement of the Session. It was then stated on all sides that England must be protected; and we were seriously admonished on this point by what had occurred on the Continent, where within eight or nine months we had seen a whole Empire for a time destroyed, and one of the finest Armies in Europe annihilated. The Government were then called on to provide means for the defence of the country, and we were convinced that so long as purchase existed the Army was not the Army of the nation, but the Army of those who had purchased interests in it. Believing that no reform could be effected without abolishing purchase, we proposed to abolish it; but when the House of Lords came to the decision they arrived at a few nights ago, what course had the Government to pursue? It was not for them to resign, for the House of Commons were in favour of the proposal of the Government. We were bound to bestir ourselves, and we adopted a course which, I think, was, under all circumstances, the best that could have been adopted; and with regard to that course, if it was any comfort to his noble and learned Friend (Lord Romilly) to know that the Law Officers of the Government were consulted, before that course was decided on as proper to be taken, he (the Lord Chancellor) had great pleasure in informing him that such was the case. Now, it might be patriotic on your part to throw out our Bill, because you did not like it. But if, though you disliked the Bill, you could do nothing, and could not take the reins of Government into your own hands, was not this one of the cases in which something must be done. The saying that "something must be done" is not one which I like in general as a principle of action; but in this case I think it holds good, and we did that which was right and just in the position in which we found ourselves. Though I have no special knowledge of military details, I have listened to the arguments used in debate and to the statements of the noble Lord the Under Secretary of State for War (Lord Northbrook), and must say I have not heard one single argument of any force urged against the proposals of the Government, except on the question of purchase. Well, it is said we ought to have propounded a scheme, and your Lordships passed a Resolution not rejecting the Bill, but saying you were unwilling to proceed with it until you learnt a great deal more than what had been told you. But everybody admitted that the noble Lord gave a better and clearer idea of the plans of the Government than had ever been given before; and the noble Duke opposite (the Duke of Richmond) complained that it was even too full of details. And was this a weak-minded and foolish scheme? The illustrious Duke (the Duke of Cambridge), upon whom I wish to fix no shadow of responsibility beyond that which he himself assumed, said these plans had been laid before him, that he would take upon himself to give effect to them, and that the officers had been treated not only justly but liberally. What becomes, then, of the argument that the Bill must be stopped because we presented you with no deliberate scheme? Now, it is an abrogation of the Prerogative if, in a Bill of this kind, you attempt to set forth all the details on which you are about to regulate the Army. It was not proper, then, to insert these details in the Bill. But, after the recent vote of this House, what other resource had the Government than the Royal Prerogative? They could not be expected to wait till another Parliamentary year, with another debate such as that which had taken place in the other House, not knowing, too, what a year might bring forth, and what events might arise in Europe. It would be a fool's paradise to believe that, though we are now at peace, Europe will be free from alarms. We took then, I submit, the wise course—a course which put an end to the Royal Prerogative by abolishing the system to which it referred, giving, at the same time, an indemnity to those who had broken the law, and pecuniary compensation to those whom it would affect. The noble and learned Lord (Lord Cairns) says—"You ought not to have embarrassed yourselves with the question of over-regulation prices, because you had ample powers to deal with them in the Act of 1809." But does the noble and learned Lord mean seriously that we should have placed half the officers of the Army in the position of men guilty of a misdemeanour, subject to the penalties attaching to that offence? I contend that, if we were to continue the functions of the Government—if we were to provide adequately for the national defence, and do justice to those with whom we have been dealing, and the price of whose commissions would have sunk very low in the market under the uncertainty to which they would otherwise have been subjected, the only straightforward and effectual course was to exercise the constitutional powers intrusted to the Sovereign, and say that a Royal Warrant should at once resolve the difficulties which lay in the way of Army re-organization. We have been twitted with having desired to insult the House of Lords. Now, I cannot help thinking that those who make such a charge do so merely from a desire to justify themselves for their Vote of Censure. Certainly a Vote of Censure so utterly unjustifiable will not be found in your Lordships' Journals. We have no motive for insulting the House of Lords, and I think no reasonable person could suppose that any insult was intended. There is some danger in always thinking you are insulted, and no man, or body of men, were ever the more respected for being so anxious about their dignity, and the best plan of preserving your dignity is to preserve a self-consciousness of having done nothing to imperil your dignity. I do not believe you will really assert your dignity by the Vote of Censure now proposed; and by passing a Resolution of this description, directed against a proposal to which the great body of Englishmen through their Representatives have assented, you will certainly not insure the harmony which it is desirable to maintain between the two Houses of Parliament. The decision of calm men judging calmly is one which must have great weight; but to the decision of men who imagine that they have been insulted equal importance is not to be attached. I cannot argue with passion, and I will not call it petulance. The course which the Government have taken was dictated by that sense of duty which led them to endeavour to serve their country in the manner they deemed to be best, for they did not think it right by a dissolution to submit the delicate question of over-regulation prices to the constituencies; and, moreover, they were anxious for harmonious action between the two Houses of Parliament. I cannot better conclude than in the words of the noble Duke who opened this debate—words with which I entirely sympathize—"Defeat in such a case as this would be more glorious for the vanquished than victory."

On Question, Whether to agree to the said Motion? Their Lordships divided:—Contents 162; Not-Contents 82: Majority 80.

Resolved in the Affirmative.

Motion agreed to accordingly.

Beaufort, D. Romney, E.
Buckingham and Chandos, D. Rosslyn, E.
Russell, E.
Northumberland, D. Sandwich, E.
Richmond, D. Selkirk, E.
Wellington, D. Shrewsbury, E.
Sommers, E.
Abercorn, M. (D. Abercorn.) Stamford and Warrington, E.
Bath, M. Stanhope, E.
Bristol, M. Stradbroke, E.
Camden, M. Tankerville, E.
Exeter, M. Vane, E.
Hertford, M. Verulam, E.
Salisbury, M. Westmoreland, E.
Townshend, M. Wilton, E.
Tweeddale, M.
Winchester, M. Combermere, V.
De Vesel, V.
Abergavenny, E. Hardinge, V.
Amherst, E. Hawarden, V. [Teller.]
Annesley, E. Hill, V.
Aylesford, E. Hood, V.
Bantry, E. Hutchinson, V. (E. Donoughmore.)
Bathurst, E.
Beauchamp, E. Melville, V.
Bradford, E. Sidmouth, V.
Brooke and Warwick, E. Templetown, V.
Brownlow, E.
Carnarvon, E. Abinger, L.
Cawdor, E. Arundell of Wardour, L.
Chesterfield, E. Aveland, L.
Dartmouth, E. Bagot, L.
Denbigh, E. Bateman, L.
Derby, E. Blantyre, L.
Devon, E. Blayney, L.
Eldon, E. Braybrooke, L.
Feversham, E. Brodrick, L. (V. Midleton.)
Fitzwilliam, E.
Gainsborough, E. Cairns, L.
Graham, E. (D. Montrose.) Carleton, L. (E. Shannon.)
Harewood, E. Charlemont, L. (E. Charlemont.)
Harrowby, E.
Hillsborough, E. (M. Downshire.) Chaworth, L. (E. Meath.)
Chelmsford, L.
Howe, E. Churston, L.
Jersey, E. Clanbrassill, L. (E. Roden.)
Kellie, E.
Lanesborough, E. Clinton, L.
Leven and Melville, E. Clonbrock, L.
Lucan, E. Colchester, L
Macclesfield, E. Colonsay, L.
Malmesbury, E. Colville of Culross, L.
Mansfield, E. Congleton, L.
Manvers, E. Conyers, L.
Mount Edgeumbe, E. Delamere, L.
Nelson, E. De L'Isle and Dudley, L.
Portarlington, E. Denman, L.
Poulett, E. De Ros, L.
Radnor, E. De Saumarez, L.
Dunboyne, L. Raglan, L.
Dunsany, L. Ranfurly, L. (E. Ranfurly.)
Egerton, L.
Fisherwick, L. (M. Donegal.) Rayleigh, L.
Redesdale, L.
Fitzwalter, L. Rivers, L.
Foxford, L. (E. Limerick.) Romilly, L.
Saltoun, L.
Gage, L. (V. Gage.) Scarsdale, L.
Gormanston, L. (V. Gormanston.) Sheffield, L. (E. Sheffield.)
Grantley, L. Sherborne, L.
Grinstead, L. (E. Enniskillen.) Silchester, L. (E. Longford.)
Hartismere, L. (L. Henniker.) Skelmersdale, L. [Teller.]
Hawke, L. Sondes, L.
Heytesbury, L. Southampton, L.
Hopetoun, L. (E. Hopetoun.) Stanley of Alderley, L.
Stewart of Garlies, L. (E. Galloway.)
Howard de Walden, L.
Hylton, L. St. John of Bletso, L.
Kesteven, L. Stratheden, L.
Leconfield, L. Strathnairn, L.
Lytton, L. Templemore, L.
Northwick, L. Thurlow, L.
O'Neill, L. Tredegar, L.
Oranmore and Browne, L. Ventry, L.
Vernon, L.
Oriel, L. (V. Massereene.) Vivian, L.
Ormathwaite, L. Wharneliffe, L.
Ormonde, L. (M. Ormonde.) Wynford, L.
Zouche of Haryngworth, L.
Penrhyn, L.
Hatherley, L. (L. Chancellor.) Bath and Wells, Bp.
Chichester, Bp.
Oxford, Bp.
Devonshire, D.
Saint Albans, D. [Teller.] Acton, L.
Somerset, D. Barrogill, L. (E. Caithness.)
Ailesbury, M. Boyle, L. (E. Cork and Orrery.) [Teller.]
Anglesey, M.
Lansdowne, M. Calthorpe, L.
Ripon, M. Camoys, L.
Carew, L.
Carrington, L.
Abingdon, E. Castletown, L.
Camperdown, E. Chesham, L.
Chichester, E. Churchill, L.
Clarendon, E. Clandeboye, L. (L. Dufferin and Claneboye.)
Cottenham, E.
Cowley, E. Clifford of Chudleigh, L.
Cowper, E. Dacre, L.
De La Warr, E. De Tabley, L.
Ducie, E. Dunning, L. (L. Rollo.)
Essex, E. Ebury, L.
Fortescue, E. Eliot, L.
Granville, E. Gwydir, L.
Kimberley, E. Harris, L.
Lovelace, E. Hatherton, L.
Morley, E. Howard of Glossop, L.
Saint Germans, E. Kildare, L. (M. Kildare.)
Lawrence, L.
Eversley, V. Leigh, L.
Falmouth, V. Lismore, L. (V. Lismore.)
Halifax, V.
Sydney, V. Lurgan, L.
Torrington, V. Lyveden, L.
Meldrum, L. (M. Huntly.) Robartes, L.
Meredyth, L. (L. Athlumney.) Rosebery, L. (E. Rosebery.)
Methuen, L. Sandhurst, L.
Minster, L. (M. Conyngham.) Saye and Sele, L.
Seaton, L.
Monck, L. (V. Monck.) Somerhill, L. (M. Clanricarde.)
Monson, L.
Mostyn, L. Stafford, L.
Northbrook, L. Suffield, L.
O'Hagan, L. Sundridge, L. (D. Argyll.)
Penzance, L.
Ponsonby, L. (E. Bessborough.) Truro, L.
Wrottesley, L.
Ribblesdale, L.

Then it was moved, "That the Bill be now read 2a."


moved that the Bill be read a second time this day six months.

Amendment moved, to leave out ("now,") and insert ("this day six months.")—(The Viscount Melville.)


interposed, and requested his noble and gallant Friend not to persist in his Amendment.


having consented,

The said Amendment (by Leave of the House) withdrawn.

Original Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the Whole House To-morrow.

House adjourned at a quarter before One o'clock, A.M., till a quarter before Five o'clock.