Lords Sitting of 7 March 1871

MINUTES.
— Sat First in Parliament—The Lord Kenlis (The Marquess of Headfort), after the death of his father.
PUBLIC BILL—Third Reading—Pauper Inmates Discharge and Regulation* (16), and passed.

MILITIA APPOINTMENTS—ROYAL CORNWALL RANGERS MILITIA.

  ADDRESS FOR CORRESPONDENCE.
  LORD VIVIAN, in moving an Address for Correspondence respecting the nomination of an officer for command of the Royal Cornwall Rangers Militia, said, that the matter which he wished to bring under their Lordships' notice was one which affected generally the nomination of officers for commands in the Militia, though it had reference to himself in particular, and to many noble Lords who, like himself, had the honour of being Lieutenants of their respective counties. The Papers for which he was about to ask related to an act of the Secretary of State for War, which act, he ventured to think, was an unwarrantable stretch of authority, and contrary to the statute which regulated these appointments. The 42 Geo. III. c. 90, s. 2, enacted that the Lords Lieutenant of counties should appoint such persons as they thought fit, being duly qualified, to be colonels, lieutenant colonels, majors and other officers, and to certify to His Majesty the names and ranks of officers so appointed; and in case His Majesty should, within 14 days after such certificate shall have been laid before him, signify his disapprobation of any person so appointed, the Lord Lieutenant could not grant a commission to the person so disapproved, but commissions shall be granted to all persons not so disapproved by His Majesty. It was, moreover, laid down by Earl Russell in 1835, and by the standard writers on the subject, that Lords Lieutenant were solely responsible for the efficiency and discipline of the Reserve forces; that the Government had only a power of vetoing improper appointments; and that this veto must not be exercised on political grounds. The appointment of an officer to command in the corps in question rested solely with him (Lord Vivian) as being the Lord Lieutenant of Cornwall.
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  The facts were these — Four or five months ago a gallant friend of his commanding the Royal Cornwall Rangers Militia expressed a wish to resign, on account of his not being conversant with the new drill, which necessarily involved a good deal of study and trouble. It accordingly became his (Lord Vivian's) duty to select a fit successor. Now, the senior major of the regiment, Major Trelawny, as far as discipline went, was, as far as he could learn, a very competent officer; but as far as his temper was concerned, he was led to believe that his appointment would be most unpopular, and would lead to the resignation of some of the other officers. He therefore felt it his duty to seek some other man. He applied to two lieutenant colonels, efficient officers, who had lately retired from active service and lived in or near the county, to accept the appointment to the regiment in question. Unfortunately, however, for reasons held to be sufficient, they respectively refused. This would show that he was not contemplating a job in favour of a friend of his own. He then wrote to his brother, who happened to hold a subordinate office in the War Department, begging him to ask Major General Sir James Lindsay, who commanded in chief the Reserve forces of the country, to select a fit man. His brother wrote to him that Sir James had said he would find him an efficient officer; adding the observation that he thought it desirable that the commanding officers of Militia regiments should be field officers in the Regulars. Acting upon this advice, he eventually fixed on a field officer of the Line, then on full pay, a lieutenant colonel in the Guards, and a man belonging to the county, Lieutenant Colonel Edgcumbe. This officer, on being communicated with, tendered the resignation of his command in the Guards; whereupon, he (Lord Vivian) forwarded his recommendation of this officer to the War Department to fill up the vacancy. This letter was received on the 2nd of February. He heard nothing more of the matter till the 14th of February, when the Secretary for War sent him a simple inquiry, why and wherefore he had passed over the majors of the regiment in favour of the officer in question. It appeared that Major Trelawny, to whom he should have given the preference

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  could he have done so with credit to himself, had written to the Secretary for War on the 22nd of January, protesting against the notion that he was to be passed over. The Secretary for War was therefore aware at the time Colonel Edgcumbe was recommended of Major Trelawny's objection; yet he did not exercise his veto within the 14 days required by the Act. In reply to the inquiry, he (Lord Vivian) stated that he did not regard the major's service in the Line or Militia sufficient to qualify him for the command of the regiment; that he had no knowledge of the new drill; that he was informed his appointment would not tend to the welldoing of the regiment; and that he had reason to believe Major Trelawny considered Colonel Edgcumbe's appointment a good one. The other major of the regiment, Major St. Aubyn, he added, had not for eight years done a day's duty with the Militia. On the 2nd of March the Secretary for War wrote—that with every disposition to sustain the nomination, he was unable, in view of the Inspecting Officer's Reports and all the circumstances, to do so, and must, therefore, disapprove the appointment. Now, he (Lord Vivian) did not object to Major Trelawny quoad his abilities, but he did quoad his popularity; and he had no doubt that the ground of the War Office objections to Colonel Edgcumbe's appointment was to be found in the Reports of the Inspecting Officers. The Reports of Inspecting Officers were valueless as to the character and abilities of Militia officers. When an inspection was decided on the practice was for an intimation to be sent to the regiment that on a certain day an officer would come down to inspect them. The railway took the Inspecting Officer within a mile or two of the field. He then proceeded to the ground, saw the officers and the men, put them through a few manœuvres, and then left; and that was all the opportunity he had of forming an opinion of the merits of an officer. The Lord Lieutenant of a county had far better opportunity of ascertaining the capabilities of an officer for command, and he conscientiously believed that if he had appointed Major Trelawny to the command of the regiment the worst consequences to the discipline of the regiment from his unpopularity, both as regarded officers and men, would have ensued. The late commanding officer,
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  to whose authority the War Department also appealed in support of its decision, had written, in reply to his inquiry, that Major Trelawny, while an efficient officer, was unpopular, he believed, through want of tact in paying full consideration to those under his command. He had no reason to suppose that the major objected to his selection, having had a letter from him begging that no personal considerations or mere sentiment should intervene, until he got a hint of it from Sir James Lindsay, a day or two before the major sent in a second protest, in terms very different from the first. His (Lord Vivian's) only object had been to appoint a fit man; but he was now placed in a very unpleasant position, and his action in the county was paralyzed, being pointed at either as the perpetrator of a gross job, or as so incompetent as to be unworthy of the post he had filled for 16 years, without, he trusted, any discredit. He was disposed at once to throw up his office, were it not that he should not like the Secretary for War to have a voice in the selection of his successor. The Secretary for War thought him incompetent to make a good selection, and he thought the Secretary for War equally incompetent to make a good selection. He would not venture to say a word about politics; but he would venture to say that if they should hereafter decide on selection in the Regular Army, the strings would be pulled by every Member of the House of Commons, and that the Commander-in-Chief, whoever he might be, would be worked upon by them. This would be the necessary consequence, and future Lords Lieutenant would be treated just as he had been. Regretting the wrong done to himself, he felt far more keenly the wrong done to Colonel Edgcumbe by the delay of the War Department in making inquiries, and in exercising the veto, which, he contended, was consequently invalid. Colonel Edgcumbe had resigned his commission in the Guards entirely with a view to the Militia appointment, and under the impression that it would be confirmed, and he was now deprived of a profession—surely a most unfair position for him, and a most unfair proceeding on the part of the Secretary of State for War. Had due diligence been used by the Department, instead of hanging up the matter for days, the injury would not have been so great. He appealed

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  to their Lordships whether a gross injustice had not been committed, and he should like the noble and learned Lord on the Woolsack to say whether the Act of Parliament had been observed. He had always endeavoured to do his duty conscientiously, and the Secretary for War had no power to make appointments without his sanction.
  Moved, "That an humble Address be presented to Her Majesty for all correspondence relating to the nomination of an officer for command of the Royal Cornwall Rangers Militia."—(The Lord Vivian.)
  THE EARL OF MOUNT-EDGCUMBEsupported the Motion, but, as a near relative of one of the officers in question, would refrain from entering into the merits of the case. His chief object in rising was to speak to the fact alluded to by the noble Lord (Lord Vivian). To his knowledge Colonel Edgcumbe would on no account have resigned his commission in the Grenadier Guards, except as a necessary preliminary to the appointment offered him, without any solicitation, by the noble Lord, and to gratify his laudable ambition of commanding the regiment of his native county. He had not the smallest reason to suppose that his appointment would not be sanctioned. There was clearly, therefore, a case of hardship. Their Lordships would, no doubt, appreciate the noble Lord's anxiety to vindicate the privileges of his office, and to exonerate himself from all responsibility for a result which he deeply regretted.
  LORD ABINGERrose to bear testimony to Colonel Edgcumbe as a very efficient officer, and that his appointment would have given satisfaction to the county.
  LORD NORTHBROOKsaid, he desired it to be clearly understood that the Secretary of State had in no way, directly or indirectly, questioned the noble Lord's motives in making the recommendation. He must, however, complain that he should be called upon to discuss the merits of the case and enter into an explanation before the Papers, to the production of which there was no objection, were in their Lordships' hands. The question was, whether the action of the Secretary of State for War was justified by the statute and by the regulations of the Militia service, and whether he had exercised a wise discretion in the particular case? On the first point he apprehended
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  no doubt could arise, as the 42 Geo. III. gave the Crown, acting through the Secretary of State, power to veto appointments. As to the latter, a Royal Commission which satin 1859, including several Lords Lieutenant and commanding officers of Militia, recommended that promotion should, as a general rule, be by seniority, and that in those instances where any departure from it might from time to time seem advisable, the reasons for it should be sent with the nomination to the Secretary of State. Lord Herbert, then Secretary for War, issued a circular calling attention to these recommendations of the Commissioners, and accordingly requesting Lords Lieutenant to transmit reasons for deviating from the principle of seniority. This circular reached the noble Lord (Lord Vivian), and it had ever since been a standing rule. In the case, however, of the appointment to which their Lordships' attention had been directed, the noble Lord did not comply with the regulations, but forwarded a simple recommendation — which, moreover, was not in the statutory form.
  LORD CAIRNSasked what statute imposed any form? The 42 Geo. III. did not.
  LORD NORTHBROOKhoped the noble and learned Lord would allow him to finish his observations without interruption. He did not mean to say that any form was prescribed in the statute. But the noble Lord, in his first letter, did not use the form and words of the statute which Lords Lieutenant had been wont to use when they desired to take advantage of the precise limit of time fixed by the Act. He held in his hand such a document, sent by another Lord Lieutenant. In many cases inquiries were necessary, and great inconvenience would ensue to the public service if the 14 days' limit were formally adhered to. Moreover, the recommendation was not received till the 2nd of February, and it was answered within 14 days—namely, on the 14th, when the Secretary for War asked for the reason for passing over the senior major. The noble Lord (Lord Vivian), therefore, could not have gazetted the appointment after receiving a request based on a circular issued under the Act of 1852, and he could not suppose that he intended to insist on the technical objection as to the interval between

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  the recommendation and the disapproval. As to Major Trelawny's first letter to the Secretary for War, it was returned to him as irregular, as an officer was bound to write to his commanding officer or the Lord Lieutenant, and not to address the War Department directly. Neither the Secretary for War nor himself ever saw this letter till after the whole matter had been decided. The delay between the 2nd and the 14th was owing to an accident in the papers passing from one hand to another. The noble Lord's explanation, however, was not completed till the 27th—the date of his last letter—which contained one of the most essential documents—namely, the opinion of the outgoing colonel. The Secretary for War replied on the 2nd March. So that from the 27th of February to the 2nd of March was not a long delay in considering the merits and communicating the decision. He much regretted Colonel Edgcumbe's position, which appeared a great hardship; but he himself personally advised his brother that he should not give up his commission. Sir James Lindsay had been referred to by the noble Lord. He would therefore read the account which Sir James Lindsay had given him of the affair—
  "In February, Captain Vivian asked me whether I knew any officer fit to take command of the Cornwall Militia, as Lord Vivian wished to know, because the lieutenant colonel of the regiment was about to retire. I replied I did not know of anyone, but would let him know if I heard of any Army officer who wished to command a regiment of Militia. Some time afterwards Lieutenant Colonel Edgcumbe called on me and informed me that Lord Vivian had promised him the lieutenant colonelcy, but previous to his retiring from the Guards he wished to know if he was pretty sure to get it. I told him that I could not tell him that, but I concluded Lord Vivian had good reason for passing over the senior major, and that I knew the junior major had not attended training for a long time; that we were glad to get young active officers fresh from military service. But the claims of officers must be investigated, and that I must inform the Secretary of State, with whom the responsibility rested, upon all points bearing on this question. I recommended Lieutenant Colonel Edgcumbe not to be in a hurry, if the lieutenant colonelcy of the Militia was his sole reason for retiring. On investigation, I found that Major Trelawny had been in the Army several years; had been constant in his service in the Militia, and had been well reported on in the official Inspection Reports. On a subsequent interview with Lieutenant Colonel Edgcumbe, I told him that he must not rely on getting it, and that there were strong reasons in favour of Major Trelawny."
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  The noble Lord had quoted a private letter from Colonel Coryton, the retiring officer, received by him subsequent to the decision; but that letter had not been communicated to the Secretary of State. In a previous letter Colonel Coryton had replied to the inquiries of the noble Lord by saying that Major Trelawny was unpopular, and in point of discipline was indiscreet, but that responsibility made a great difference. Colonel Coryton gave the major, in other respects, a high character. The noble Lord (Lord Vivian) had represented the major as offering no objection to the appointment; but it was only fair that the explanation which the latter had given should be submitted to their Lordships. Major Trelawny complained, in effect, that by the selection of Colonel Edgcumbe he had been practically turned out of the service as incompetent. [The noble Lord then read extracts from the Correspondence which was afterwards ordered to be laid on the Table.] He regretted to have troubled their Lordships with the Correspondence; but, at the same time, he thought it necessary to put them in possession of Major Trelawny's explanation, and it certainly appeared to him, from the Correspondence, that his noble Friend was not justified in stating to the Secretary of State that Major Trelawny had approved the nomination of Colonel Edgcumbe. After all, however, the question was this — Was the Secretary of State required by statute to exercise his judgment in those matters, and to communicate, if necessary, the disapproval of Her Majesty of an appointment recommended by a Lord Lieutenant? It appeared to him that the position was clear that such a responsibility was placed by the statute on the Secretary of State; and he might inform their Lordships that that power had been constantly exercised by Secretaries of State in many previous and similar cases. That being so, the next question that arose was whether the exercise of that power in this particular case was a wise or an unwise one? He could only say that his right hon. Friend the Secretary of State had dealt with that case — indeed, the position and character of his right hon. Friend were enough to ensure that—without any political bias whatever, and simply with the view of doing his duty, and he had to consider whether the opinion of his noble Friend, partially sup-

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  ported by Colonel Coryton, should be decisive, or whether the opinion of the responsible advisers of the Secretary of State—namely, the Inspector General of the Reserve forces and the officers who had, from time to time, inspected the regiment should also be taken. His noble Friend (Lord Vivian) had used language which had rather surprised him—because the officers that had inspected the regiment included Sir A. Spencer and Colonel Julius Glyn, who were not men likely to send in incorrect reports respecting the character and qualifications of Major Trelawny. In those confidential Reports not only was the fitness of Major Trelawny for the command of the regiment distinctly given in the affirmative in answer to the questions put to the Inspecting Officers, but the Reports also contained stronger statements in favour of his qualifications than were usual. What, then, was the position of Major Trelawny in respect to previous service? Was it such as was likely to disqualify him for a command in the Militia? He was educated at and obtained his first commission from Sandhurst — which, of itself, showed that he had qualified himself by study for his profession—and, more than that, he had received a special certificate of proficiency. He served in the 36th Regiment from 1845 to 1848, and in the Inniskilling Dragoons from 1848 to 1853. Having also served for 10 years as adjutant and major of Militia, and been reported upon as fit to command the regiment by the Inspecting Officers, he said that if the Secretary of State had passed over such an officer, he did not think that any major of Militia could feel the least certainty that his claims, however high they might be, would not be set aside if he did not happen to have had recent experience in the Regular Army. It appeared to the Secretary of State to be essential that Militia officers should feel that the recommendations of the Royal Commission would be carried out, and that officers who had devoted great time and study to their profession would not be passed over, even upon the recommendation of Lords Lieutenant, without good cause. The Secretary of State therefore felt that if the responsibility resting upon him were to be accounted of any value—however much it might be against his feelings — he could not but recommend Her Majesty to disapprove
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  the recommendation made. In conclusion, he (Lord Northbrook) would add that he could not regard this incident as one which could be used as an argument against the principle of promotion by selection; on the contrary, it showed that, notwithstanding the recommendation of the Lord Lieutenant, the Secretary of State thought it would not be consistent with his duty to the public service to shelter himself under the responsibility of that recommendation, and had taken upon himself the responsibility of recommending Her Majesty not to approve of an appointment which he was of opinion would not be for the benefit of the service.
  THE EARL OF MOUNT-EDGCUMBEbelieved he would not be guilty of any betrayal of confidence if he stated that this matter had arisen out of a question he had put to the noble Lord in connection with the proposed scheme for re-organizing the forces. He had asked the noble Lord whether it would be better for his relative to remain in the Army or accept a position in the Militia? The noble Lord had replied that it would be better if he stayed where he was, and explained himself by saying that possibly commands in the Militia would be given to officers on half-pay.
  LORD CAIRNSsaid, that his object in interrupting his noble Friend (Lord Northbrook) was to ascertain whether there was any Act of Parliament prescribing the form of recommendation suggested by his noble Friend, in order that he might inform himself on the point before their Lordships. He did not know any of the parties to the matter under discussion, and did not take any interest in the subject as a question of military appointment; but he had been attracted to the question in consequence of what seemed to him to be the summary mode in which the Secretary of State for War had made use of the Act of Parliament in disallowing the recommendation of the Lord Lieutenant. He could not help thinking that the War Office had made a most complete and palpable blunder, and his advice to the Secretary of State was that he had taken up an untenable position, and should retreat from it at once. He could only account for it by thinking that the Secretary of State for War had arrived at the conclusion that the legislation which was contemplated was already

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  arrived at, and that the authority over the Militia regiments of the country had been already handed over by the Lords Lieutenant to the War Office. He thought the noble Lord had brought himself into conflict with one of the plainest Acts of Parliament. What was the law relating to the Lord Lieutenant's power to make such appointments? The Act of Parliament was the 42 Geo. III., c. 90, and by it the Lords Lieutenant were authorized to constitute and appoint such officers as they thought fit, having certain qualifications, to be their deputy lieutenants, and to appoint a proper number of colonels, lieutenant colonels, majors, and other officers, qualified as mentioned in the Act, for the purpose of training and commanding the persons referred to in the Act; and it also required the Lords Lieutenant "to certify to His Majesty the names and ranks of such officers so to be appointed." In case His Majesty should, within 14 days, disapprove the names so certified, it was not lawful for the Lords Lieutenant to appoint them; but after that time it was lawful to grant commissions to such persons only "as were not so disapproved of by His Majesty." The noble Lord (Lord Northbrook) had spoken, much of the responsibility of the Secretary of State for War; but that was an entire misapprehension, for the responsibility of these appointments lay with the Lords Lieutenant of the counties. The disapprobation referred to in the Act was a disapprobation not of the course adopted by the Lords Lieutenant, but of the person to be selected. It was a disapprobation not of the manner of appointment, but of the person proposed to be appointed. What would be thought of a Secretary of State recommending Her Majesty to disapprove the appointment of a deputy lieutenant not because there was any objection to the nominee, but because the Secretary of State thought somebody else more fitted for the post? Again, the War Office was completely wrong in point of time as regards their right of signifying their disapprobation. The defence of the War Office on the point of the certificate was a very unfortunate one. He wanted to know why, if the War Office did not regard the letter which had been sent by the Lord Lieutenant as an appointment, they did not return it, saying—"This is not such a document as
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  we can receive from you. It is for you to certify the ground for the appointment, and then we will tell you whether we approve of the certification or not?" But the War Office retained the document; and, more than that, the Lord Lieutenant wrote an official letter, recommending for Her Majesty's approval the appointment of the Hon. Charles Edgcumbe for one office, and also in the same letter recommending for Her Majesty's approval the appointment of Lieutenant Arthur Hutchinson for another. Now, the Secretary of State, in his reply, adopted the certificate of the appointment of Lieutenant Hutchinson, and acted upon it by getting Her Majesty's approval; but in the case of Lieutenant Colonel Edgcumbe, he asked the Lord Lieutenant's reason for passing over two other gentlemen. As regards the time within which an objection might be signified by the Crown, there was not intimation of disapproval in the letter of the 14th February; and the War Office had, he held, no right to signify their disapproval at a date long after the expiry of the time permitted by the Act, and he thought they ought to withdraw from their position.
  THE LORD CHANCELLORsaid, it seemed to him unfortunate that a question of law should be argued before their Lordships not when sitting in the usual manner as a Court of Appeal, but as a matter of discussion and debate. And he felt it was the more unfortunate because his noble and learned Friend (Lord Cairns) had taken upon himself to say that Her Majesty's Government had misconceived the law and were utterly wrong. Now, he (the Lord Chancellor) took upon himself to maintain, in opposition to his noble and learned Friend, that the Secretary for War had kept strictly within the limits of the law in what he had done in the present instance—and not only that he had kept within the law, but had acted in the spirit of it. His noble and learned Friend (Lord Cairns) had begun his remarks by stating that the Government had mistaken their position in giving any opinion with reference to the course taken by the Lord Lieutenant in making the appointment, and that all they had to do was to express their approval or disapproval of the person on whom it was conferred. In the very first section, however, of the Act 15 & 16 Vict., it

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  was provided that it should be lawful for Her Majesty's Principal Secretary of State to frame regulations with reference to such appointments as that in question, subject to which "any such appointment shall be made." And he had been informed that regulations had been made in accordance with that section, in which it was recommended to the Lords Lieutenant to state, when they passed over any officers in the regiment, the reasons why these officers were passed over; and he apprehended that this was extremely reasonable. But then his noble and learned Friend maintained that the objection to the appointment should have been notified within 14 days. Fourteen days after what? Fourteen days after the appointment was made and certified. But in the case under discussion no appointment was made, according to the letter of the 1st of February.
  LORD CAIRNS: There are no such words in the Act of Parliament as "after the appointment was made." The Act provides that the 14 days shall run from the time when the certificate is laid before the Secretary of State. The commission was not to be granted before 14 days; but if no objection was signified within that time, the Lord Lieutenant would issue the commission.
  THE LORD CHANCELLOR: If his noble and learned Friend would turn to the 2nd section of 42 Geo. III c. 90, he would find it there provided that the Lord Lieutenant should appoint a proper number of colonels, lieutenant colonels, majors, and other officers, and that "he shall certify to Her Majesty the names and ranks of all such officers so to be appointed." The Lord Lieutenant, therefore, was called upon to do two things. He had to appoint, and to inform the Secretary of State that he had appointed—not that he intended to appoint. Let what force his noble and learned Friend chose be given to the word "certify," it was inconsistent with every legal construction of it to say that, in writing to the Secretary of State to request Her Majesty's approval of a recommended appointment, it was certified that the appointment was actually made. He believed that the letter of the Lord Lieutenant was quite in accordance with the course usually adopted; and that that course had been adopted for the sake of allowing friendly communications between the Secretary of State and the
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  Lord Lieutenant on the subject of every appointment before the appointment was made. Afterwards, when the names had been given and approved of, then, and not till then, the formal communication of the appointment was made. He regretted that, as legal proceedings might be taken in connection with the subject, any question of law should have been raised in the present discussion; But he could not concur in the opinion that a friendly communication, asking for the approval of an appointment, amounted to a certificate that it had been absolutely made and concluded. The course which had been taken by the Secretary for War in the matter was, he believed, one which was perfectly reasonable, as well as in accordance with the usual practice of the Office. On the merits of the question beyond the mere point of law involved he wished to say nothing, as it lay outside his Department. He would simply add that his noble and learned Friend (Lord Cairns) was quite wrong in supposing there had been no formal expression of disapproval in the case, for such disapproval was conveyed in the reply dated the 14th of February, which came within the prescribed 14 day limit.
  THE DUKE OF RICHMONDthought the question on which the noble and learned Lord had just touched was one which did not require the judgment of a lawyer, or the possession of any special legal training, to enable their Lordships to form an opinion upon it. If the letter written by the Lord Lieutenant to the Secretary of State was not an appointment and was not a certificate, he would ask the noble and learned Lord where was the certificate contemplated by the Act of Parliament? was there any such certificate in existence? What construction did he put upon the recommendation contained in the last clause of the letter, recommending for Her Majesty's approval the appointment of Lieutenant Hutchinson? That recommendation was made in the same letter, and conveyed in the same way, and the War Office had acted upon the intimation. He must also differ from the construction put by the noble and learned Lord upon the Act of 1852. There was not one word in that Act altering the express enactment of the statute of George III., that unless disapproval were signified by the Secretary of State within 14 days the

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  appointment made by the Lord Lieutenant was valid. For these reasons he believed that the appointment made by the Lord Lieutenant of Cornwall was a valid appointment; and that Her Majesty's Government, notwithstanding all that had been said by the noble and learned Lord upon the Woolsack, had taken up a position which they would find it impossible to maintain.
  THE DUKE OF ARGYLLsaid, he knew nothing of the matter beyond what he had heard in the House that evening, nor would he enter into any of the technical details referred to by the noble and learned Lord opposite (Lord Cairns). He must do the noble Lord on the cross Bench (Lord Vivian), who had brought forward the subject, the justice of saying that he touched but lightly upon the more technical question, and at once went faithfully into the merits of the case. The argument of the noble Lord, that the Secretary of State for War had exercised a wrong discretion in overruling his recommendation was a perfectly fair one; and he had the greatest possible respect for the judicial opinions given by the noble and learned Lord opposite, when clothed in ermine and sitting on the judicial Bench; but the off-hand opinions he frequently gave in the House upon matters of personal and political interest required the very closest watching. In listening to the argument of the noble and learned Lord, he himself perceived more than one place in it through which a coach-and-six might have been driven, and he believed the whole argument had been completely upset by that of the noble and learned Lord on the Woolsack. However, he had not risen to argue the legal point, but to point out that if the War Office was, as the noble and learned Lord had said, totally in the wrong on the present occasion, he ought consistently to have contended that it had been wrong for many years, if not, indeed, for some generations; for it was the universal custom of all Lords Lieutenant—and himself was one—to submit for the approval of the Crown the names of those persons whom they intended to appoint. The noble and learned Lord argued that the power of the Crown was a mere power of veto, and did not include the power to overrule the discretion and responsibility of the Lords Lieutenant. He would ask the noble and learned Lord, how could the business
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  of this country be transacted, and the duties of the Lords Lieutenant be discharged, if they were simply to nominate the persons they chose, with the bare chance of the Crown exercising a veto upon the appointments? The custom hitherto followed by Lords Lieutenant was that they should previously ask the approval of the Crown to the names of the persons whom they intended to appoint.
  LORD CAIRNS: Approval of the appointment.
  THE DUKE OF ARGYLL: If the noble and learned Lord meant that it was an approval by the Crown of an abstract appointment, his proposition was altogether preposterous. It was an approval by the Crown of a particular person appointed to a particular place; and it had always been the practice to ask the previous approval of the Crown—for it would be extremely inconvenient for Lords Lieutenant to name any persons with the veto of the Crown hanging over them. If there was any doubt as to the mere technical legality of the position the Secretary of State for War had taken upon this question, let the noble Lord withdraw his letter of recommendation, let both parties withdraw their names, so that they might stand exactly in their former position and the power of the Secretary of State to issue his veto be tested. For his part, he believed the noble and learned Lord opposite was entirely wrong, and the War Office perfectly right upon this question.
  THE DUKE OF BUCCLEUCHsaid, that having been appealed to as the Lord Lieutenant of two counties, he desired to explain that the course which he had been in the habit of pursuing was to send in to the Crown the name of the person whom he wished to appoint. In forwarding this communication, however, he always considered that he was, in fact, formally making known the selection which he intended to act upon; and if no answer disapproving the appointment was returned by the Secretary of State, he instantly signed the commission when the proper time arrived, and sent it to the Gazette.
  Motion agreed to.
  House adjourned at a quarter past Seven o'clock, to Thursday next, half past Ten o'clock