LORD SELBORNE rose to call attention to the question whether the Indian troops excepted from the Vote recited in the Preamble of the Mutiny Act can, consistently with Constitutional Law,
be employed during time of peace elsewhere than in Her Majesty's Indian Possessions without the previous consent of Parliament?—and said: My Lords, it is not my intention to attempt to make use of the present opportunity to call in question the policy of the step taken by Her Majesty's Government in ordering troops from India to Malta. That is a very important matter, on which, doubtless, a variety of opinions may exist in your Lordships' House, and a matter on which I should be fully prepared, at what I might deem a fitting opportunity, to express the opinion which I may have formed. But, on the present occasion, I think it better to abstain from entering upon any such question of policy. The occasion in respect of which I shall address your Lordships is, as I view it, a peculiar and remarkable one. It has not arisen in a time of war, and therefore it does not give rise to any considerations peculiar or appropriate to such a state of circumstances. It has not arisen at a time when Parliament was not assembled, and when the Government could not advise the Sovereign to have immediate recourse to the counsels of Parliament. It has arisen when Parliament is in full Session, and when there has been no obstacle whatever to any communication which might be constitutionally right and proper between the Queen and Her Parliament. No doubt there have been occasions in the past history of this country—and such occasions may occur again—when, in consequence of alarm of war when Parliament was not accessible, extraordinary measures might not only be justified, but it might have been the duty of the Government at the time to take them; and in such circumstances, if those measures were wisely and necessarily taken, the Government might rely on the ratification of Parliament on the first opportunity after its re-assembling. But that is not the state of circumstances in this case. Neither can the case be represented as one in which there has been any inadvertence or oversight in any sense whatever on the part of the Government. The facts are these. The usual preliminary Votes having been taken, the annual Mutiny Bill, founded on the Vote of Men for the Army, passed the House of Commons on the 29th of March last. Before
that time your Lordships will remember a change had occurred in the composition of the Government, which I cannot be far wrong in presuming to have occurred after the measure now under consideration had been decided upon by the Cabinet. On the 1st of April, in compliance with the requisition of the Act of Parliament relating to the Reserves, a Message was brought down from the Crown which communicated, in the proper and Constitutional manner, the measure which the Sovereign, on the advice of Her Ministers, had taken for calling out those Reserves; and I need not state to your Lordships, that, if Her Majesty's Government had not thought that this other measure, which then either had been resolved on or was in immediate contemplation, was one that needed no communication to Parliament, it is hardly possible that a communication respecting it should not have been made simultaneously with that relating to the Reserves. My Lords, no such communication was made. Both Houses of Parliament adjourned on the 16th of April for an unusually long period, and on the same day the Royal Assent was given to the annual Mutiny Act. Immediately afterwards the country became aware that the Government had given orders that, I think, seven regiments of Native troops should be sent from India to Malta. Naturally, as soon as Parliament met, attention was called to that subject; and Parliament was informed, in the most authoritative manner, and by one of the most authoritative organs of the Government, that this was an order
strictly within the proper Constitutional Prerogative of the Crown, and one which Her Majesty has as much right to give as to order any portion of British troops now in England to proceed to Gibraltar or Malta, or anywhere else;" and was subject to the control of Parliament only like "all movements of British forces"—namely, by means of "the right of withholding or challenging the Supplies asked for the purpose."—[3 Hansard, ccxxxix. 1435]
Under any circumstances, we should not have thought it our duty—even if we had foreseen that the matter would become public within so short a time—to have made a communication to Parliament with respect to it until the arrangements had been completed."—[Ibid, 1436.]
My Lords, I ought not to omit to mention
that the same authority, while admitting that it would be an infringement of the Bill of Rights to bring Native troops from India to England, thought that those troops might legally be called on to serve in the Channel Islands. On the day following, this further announcement was made in the House of Commons—
The Indian Government has for the moment provided what is necessary for the fitting out of the Expedition, and the payment of the troops.
(Adding, that a Supplementary Estimate would be prepared for re-payment, and to provide for future expenses). In The Gazette of India of April 20 appeared a notification regarding the force to be despatched for service beyond sea, laying down rules for its pay, equipment, &c.—
Regiments of Native Infantry will draw extra batta and free rations, or ration money at 3 rupees and 8 annas per month will be allowed to rank and file while on foreign service. Forage will also be allowed to horses and ponies of Cavalry, &c. The commanding officers will be authorized to advance three months' pay to the troops for service.
That was, of course, out of the Indian Revenues. My Lords, it appears to me that even if I could not challenge this measure on the strictest grounds of legality—as I propose to do—I should be well entitled to speak of it as "unconstitutional," in the sense attributed to that term by the great Constitutional historian, Hallam; who, calling in question the strict historical accuracy of the statement in the Bill of Rights, that the maintenance of a standing Army in this Kingdom had always been against the law, added that it was at least unconstitutional in this sense—that it was "a novelty of much importance, tending to endanger the established law."
§ But, my Lords, I challenge this measure both on the ground that it is unconstitutional in that wider and larger sense of that term which may be taken to include things not against the strict letter of the law, and also on the ground that it is against the very letter of the law. The two propositions which I shall endeavour to establish before your Lordships' House are these—First, that the previous consent of Parliament is necessary before any Imperial Forces in addition to the 135,452 men voted for the year commencing April 1, 1878, and 191 mentioned in the Mutiny Act of this year, can be employed in time of peace elsewhere than in India, whether they be Indian troops or any other; and, secondly, that under the India Government Act of 1858 the Indian Revenues cannot be legally used, unless in the particular cases excepted by that Act, without the previous consent of Parliament, for the payment of Indian Native troops serving out of India; and that such use of those Revenues is not made legal by any intention on the part of the Government to ask Parliament for repayment. These are the two propositions on which I take my stand. My Lords, to avoid any misapprehension, I may observe that, when I use the words ''Imperial Forces," and say the previous consent of Parliament is necessary for the increase of these Forces serving out of India beyond the number mentioned in the Mutiny Act, I, of course, exclude every local Force in the nature of a Militia, or by whatever other name it may be called, in any of Her Majesty's Colonial or Foreign Possessions, which is not movable at the pleasure of the Crown. And, when I speak of the previous consent of Parliament, I do not mean only a consent signified by an Act of Parliament, or any formal or technical mode of consent; but I mean anything which, having regard to established Parliamentary and Constitutional usage, is habitually accepted as a sufficient Parliamentary consent. With those explanations, I confidently affirm the soundness of the propositions I have advanced. And, my Lords, I attach great importance to the word "previous," in my propositions; because, whenever by law or by the Constitution, the consent of Parliament is required, that consent, if you do not mean to make the obligation illusory and nugatory, must be sought for beforehand whenever it can reasonably be so sought. Of course, the safety of the State must outweigh all other considerations; and if it were not reasonably possible to ask the consent of Parliament before the thing was done, then, the thing being proper in itself, Parliament would doubtless condone the proceeding and ratify the act. But, wherever it is reasonably possible, it is of the first Constitutional importance—it is of the most urgent moment—that when the consent of Parliament can be obtained beforehand, the 192 asking for it should not be deferred to whatever time may suit the convenience of the Government. There is another reason why the consent of Parliament should be "previous"—founded, as I understand it, first, on the manner in which Parliament from year to year gives its sanction to the raising and maintaining the Forces it authorizes; and next, on the form and manner in which that authority is now expressed and embodied in the Mutiny Act. The authority is given, in the first instance, by the Vote of that Body which has command over the public purse, and which votes for the year commencing on a particular day and ending on another day, over which the annual Vote runs, and over which the Mutiny Act also extends, a certain defined number of Men, "not exceeding" so many, who shall be maintained as the Army of the Crown. The words "not exceeding" express a plain prohibition, as far as the terms of that Parliamentary consent go, of any excess in addition to the number then sanctioned by Parliament, which Parliament may not afterwards, in the usual and Constitutional manner, authorize. Until a Supplementary Vote is asked for, and granted, any number exceeding that limit is a direct transgression of the terms in which Parliament has given its consent. And, although that exact form of words is not transferred into the Mutiny Act, yet the affirmative form of that Act amounts in substance to the very same thing; and, as I shall be prepared to show when I come to comment on that Act, it excludes by necessary implication any excess of the number therein mentioned which Parliament may not have authorized. Therefore, both by the letter of the law and on the Constitutional principle, the consent of Parliament is necessary before such a thing can be done; and it is the duty of the Government to obtain that consent before doing it.
How, my Lords, am I to establish the propositions I have advanced? I am content to adopt what was said by Mr. Pitt, in 1794, on the landing of Hessian troops at Portsmouth—
In such a case there were only two principles to be proceeded upon—the written law, or the known practice and established usage of Parliament.
I think I shall be able to show that both the written law and the established
usage of Parliament are against what has been done in this case.
My Lords, first as to the written law. The Bill of Rights, if technically construed—if construed without the application of the Constitutional principle which underlies it, and without regard to the Constitutional interpretation it has received—might not, perhaps, be in the mere letter of its terms sufficient to prove my case; yet, it is so connected with the foundation of that case, and with the whole history of the Constitutional practice that has resulted from it, that it is impossible not to mention it prominently and in the first instance. I refer to the famous declaration in the Act of Settlement of 1689—
That the raising or keeping a standing Army within the Kingdom in time of peace, unless it be with the consent of Parliament, is against law.
My Lords, you observe the words "in time of peace." My notice has reference to a "time of peace," and I am not now going into the question how far in time of war the application of that prohibition is co-extensive with its application in time of peace; but you cannot look through the documents containing the public history of this country since 1688, without seeing that Parliament has always been most anxious, even in time of war, to conform, as nearly as it possibly could, to the Constitutional principle laid down in the Bill of Rights as applicable to time of peace. The words are "within the Kingdom," which, at least, means the Realm of England—though I should be sorry to construe the words as applicable to England alone; but it may, no doubt, be contended that they had reference to England alone, because, in 1689, the Union of Scotland, and the Union of Ireland, with England, had not been effected, though there were foreign Dependencies, and the Isle of Man, and the Channel Islands. I do not want to enter into that technical argument; but I cannot help calling attention to the fact that, the words of the Bill of Rights having been recited in every Mutiny Act down to the year 1800, the words "within the Kingdom," were then and thenceforth, without any new legislation upon the subject, changed to "within the United Kingdom of Great Britain and Ireland;" and I am much mistaken if I shall not satisfy your Lordships
that Guernsey and Jersey had always been considered as included in their proper meaning. I think, also, that I shall be able to show your Lordships, that the Constitutional principle on this point has always been understood to include all the Dependencies of the Crown. What security could possibly be imagined to be derived from a law or a Constitutional principle, which limited the rule as to a standing Army so as to make it apply only to such a standing Army as might for the time being be within the four corners of Great Britain—or, after the Union of Ireland, of Great Britain and Ireland—if there might, at the same time, be a standing Army of unlimited numerical force in other Possessions of the Crown, which the Crown, for its own purposes, might move and dispose of without reference to Parliament? It appears to me quite plain that the public danger, which it was believed would exist if the Crown had the power of keeping a standing Army without the consent of Parliament, never could be provided against on such a limited construction of the Bill of Rights, as would admit of a standing Army being maintained without limit anywhere except in Great Britain and Ireland—even, according to the Government of the present day, in the Channel Islands.
And now, my Lords, let me refer to the Constitutional practice which followed the passing of the Bill of Rights. From 1689 down to the time of the Peace of Utrecht, this country was almost uninterruptedly at war. During those years, there were no numerical Votes and no numbers in the annual Mutiny Acts; but the manner in which Parliament, in the annual Mutiny Acts, then consented to the maintenance of the Forces necessary for the public service, was by declaring that—
The present Forces should be maintained and others raised for the safety of the Kingdom and the preservation of the liberties of Europe.
But, in 1714, after the Peace of Utrecht and the accession of George the First, an Act was passed for the regulation of the Army; and it was stated that there was to be—
A number not exceeding," &c., "to be kept up on foot for the guard of Her Majesty's Royal person and the safety of the Kingdom, and also a certain number of troops for the
defence of Her Majesty's Possessions beyond the seas belonging to the Crown of Great Britain.
This "certain number" was fixed by a numerical Vote of "not exceeding" so many men, for each Plantation and Foreign Garrison or Possession for one complete year; and the Appropriation Act followed the same distinction. This practice became permanent, and continued for nearly a century, during which the Forces maintained for the defence of the Possessions beyond the seas belonging to the Crown of Great Britain were not numerically defined on the face of any Mutiny Act; but they were numerically defined by annual Votes of the House of Commons, for which distinct and separate provision was made in every year by the Appropriation Act. The whole subject was fully debated in the House of Commons in the year 1717; and from that time down to 1808, in every year, there were separate Votes taken for what it may be convenient to call the "Home Service"—though I shall presently show that much more than "Home Service" was comprehended within it—and for the service of our Foreign Possessions, during the current year; which Votes passed into the several Appropriation Acts. The Mutiny Acts, during the same period, did not mention numerically any Forces, except those which were for what I have called the "Home Service," which, in the Votes, were often described as "for guards and garrisons, and other His Majesty's Land Forces, in Great Britain, Jersey, and Guernsey;" and which, in time of war, always included the Regular troops serving abroad. My Lords, that "Home Service," as you will see very plainly, really meant the whole standing Army of the country, which was kept up for the defence of Great Britain, and also for the maintenance of those Imperial interests of which Great Britain was the centre and the guardian. I wish to show the House for what purpose the troops mentioned in all those Mutiny Acts were kept up. From 1717 to 1866, with very rare exceptions, the Forces mentioned in those Acts were stated to be maintained—
For the safety of the Kingdom, the defence of the Possessions of the Crown, and the preservation of the balance of power in Europe.
That shows clearly how mistaken would be the notion, that those numbers
were at any time kept up simply for domestic purposes, or as an Army to be employed only in the United Kingdom. It was the whole Imperial Standing Army which was mentioned in those Acts. The Forces for outlying Plantations and Garrisons were kept separate from that Army—they had separate numerical Votes taken, and separate Appropriations made for them, and were not regarded as part of the Imperial Standing Army maintained—
For the safety of the Kingdom, the defence of the Possessions of the Crown, and the preservation of the balance of power in Europe.
I do not know why, but since 1866 the "balance of power" has been left out of the Mutiny Acts. That, of course, makes no difference, but I mention the fact. In 1808 the form of the Estimates, Votes, and Appropriation Act was changed, so as to comprehend in one general Vote all Her Majesty's Land Forces for service at home and abroad, except the regiments in the East Indies, the foreign corps in British pay, and the embodied Militia. That Vote included all the Foreign Garrisons, the West India, and other Colonial regiments, and Canada and other Fencibles; and, from that time forward, no separate Vote was taken for Plantations and Garrisons abroad. The annual Votes and Appropriations have ever since followed the precedent of 1808, with variations of form only. Till 1812 no corresponding change was made in the Preamble of the Mutiny Acts. Then, for the first time, there was given in the Mutiny Act of that year the whole number voted—245,996—which in that year included the King's Forces serving in the East Indies, for which a separate Vote was taken. From that time, there has been swept away both from the annual Votes and from the Mutiny Acts the distinction which, from 1714 to 1808, had been made between that which I have described as the Home Army—but which, in a far higher sense, was the Imperial Standing Army, kept up for the defence of the Possessions of the Crown and the preservation of the balance of power in Europe—and the Local Garrisons and Plantation Forces. From that time the whole were consolidated and brought together. I find, that from 1813 to the passing of the Act for the Government of India, in 1858, all the Mutiny Acts followed the precedent of 1812, except
that they excluded from the number mentioned "His Majesty's Forces employed in the territorial possessions of the East India Company," but included "the officers and men of the troops and companies employed in recruiting for those Forces." After that date, there were no men employed in the moveable Armies of the Crown, anywhere save in India, who were not included in the number of men voted, and mentioned in every year's Mutiny Act. Since 1858, the same principle has been adhered to, with some differences of expression, which I shall note hereafter. The Votes, the Appropriation Acts, and the Mutiny Act, all continued to refer to the number of men, voted for the year as "not exceeding" so many, excluding the Forces in the territorial possessions of the East India Company. I apprehend, therefore, that if a portion of the latter had in any year been withdrawn from those territorial possessions and sent to Malta, so as to add to the whole aggregate of the number of troops to be maintained under the Mutiny Act, that would have been a plain and distinct violation of the Mutiny Act, and an undoubted contravention of the law. It would have been necessary to go to Parliament, and get a Supplementary Vote, before any of the Forces employed in the territorial possessions of the East India Company could be moved from India and taken anywhere else, except in exchange for an equivalent number, sent instead of them to India. That brings me down to the end of the time which preceded the change, such as it was, which was effected by the Government of India Act; and when I deal with that Act, I shall have to cover the ground of both at once of the propositions, which I told your Lordships it was my intention to maintain.
Before, however, I leave this part of my subject, I should be doing wrong if I did not refer your Lordships to two historical precedents illustrating what I have said, both of which occurred during the last century. In the first place, I shall refer shortly to what happened in 1734. Europe was then engaged in war. Great Britain was not at the time involved in it, but there was great reason to apprehend that this country might become so involved, and Parliament was about to be immediately dissolved. The new Parliament could not meet for a considerable time,
and events of the gravest importance might occur in the interval. What did the Government of the day do in that state of things? Did they consider it their duty to dissolve Parliament, and to meet any case of necessity, by making an addition, on their own responsibility, to the Forces, and afterwards applying to Parliament for an Act of Indemnity? No; they took a very different view. They saw that the state of circumstances was such as might make it necessary, in the interval between that time and the meeting of the next Parliament, to raise additional Forces. Accordingly, a Message was sent down from the Crown, asking the consent of Parliament to an indefinite increase of Forces, of which an account was promised to be given to the next Parliament, on the ground of a necessity for taking precautions—
During such time as it may be impossible for His Majesty to have the immediate advice and assistance of his great Council.
The King, therefore, having asked beforehand, that both Houses would give their consent to the raising of such additional Forces as might be necessary, both Houses voted Addresses of Assent in answer to the Royal Message. It was thought by many statesmen of that day that even that was too large a power to be entrusted to the discretion of the Crown; but Lord Hardwicke and Lord Chancellor Talbot held that consent might be given by an Address from each House of Parliament, as well as by an Act. The imminence of the danger was held to justify His Majesty's Message, and what followed was covered by the consent given beforehand. That was an example of a clear adhesion to the Constitutional principle for which I am now contending.
Again, my Lords, in 1775, on the breaking out of the American War, Parliament was informed in the King's Speech, on the opening of the Session, that his Majesty had
sent to the garrisons of Gibraltar and Port Mahon a portion of His Electoral troops, in order that a larger number of the established Forces of this Kingdom might be applied to the maintenance of its authority.
That was done while Parliament was not sitting, and the proceeding was defended on the ground of necessity;
but it was very much contested whether such a proceeding, without the consent of Parliament, could be justified; and I find that some of the most eminent men of that day supported a Motion for a grave Censure. Among them were Lord Lyttelton, the Duke of Grafton, the Duke of Richmond, and Lord Camden, all of whom insisted on the received Constitutional understanding of the principle of the Bill of Rights. Lord Camden,
from the true construction of the letter and spirit united, as interpreted for a series of almost 90 years. … drew this obvious conclusion—that no foreign troops could be brought into the Dominions of the Crown of Great Britain without the previous consent of Parliament. … It was true," he said, "that the word 'foreigners' was not mentioned in the law; but would anyone infer from that, though it was not permitted to keep a standing Army of natives, it might be wise, constitutional, and legal, to keep on foot a standing Army of foreigners?"—[Parl. Hist., xviii. 811–12.]
He added, that "he was ashamed to dwell on such puerile distinctions." But it does not rest on what Lord Camden said. Other ancestors of noble Lords now in the House expressed similar opinions. The Lord Chancellor of that day, Lord Bathurst,
deserting what he called the quibbles of Westminster Hall and the subtle distinctions of lawyers, allowed that the fortresses of Gibraltar and Port Mahon were fairly within the spirit and meaning of the paragraph in the Act of Settlement; and that, in the same sense, too, he understood it applied to foreigners, but to neither in the manner now contended for."—[Ibid., 815.]
He justified the measure on the ground that America belonged to "the Kingdom" in the same sense that those fortresses did, and that, there being war in America, it was not a "time of peace." Even when so defended, the Government of the day, though professing to believe in the strict legality of their act, did not depend upon that justification, or meet the Motion of Censure moved in both Houses with a direct negative. They moved the Previous Question, and in that way, of course, succeeded; and Lord North, the Premier, brought in a Bill, reciting that there were doubts of the legality of the measure, and proceeding to grant an Indemnity for it. That Bill passed through the House of Commons and came up to the House of Lords. In the House of Lords it met with opposition, not from any unwillingness to grant the indemnity, but
because it was not thought right to acquiesce in the proposition that there was any doubt as to the law. The supporters of the Government said—"We do not care about it on our part." They were strong and confident both in their majority, and also in their substantial justification for what they had done, when Parliament was not sitting, for the safety of the Realm. They knew, that in so acting, they had incurred no actual peril; and therefore they were content to leave the matter as it was, and to let the Bill be rejected. But history records that, far from taking their stand upon the ground that this was a thing which could properly be done in time of peace without the consent of Parliament, they justified their conduct only because the country was at war; and they were not content to take a negative Vote against the proposition of Censure, but they moved the Previous Question, and pressed forward a Bill for their own indemnity, until they found that it would not pass with the unanimity which in their eyes would alone give it value. These are the precedents, arising before the year 1808, to which I have thought it right to call your Lordships' attention; and, if your Lordships will allow me, I will read a short passage from the speech of Serjeant Adair, delivered in the House of Commons in 1775, because it bears strongly upon the question now under discussion. Serjeant Adair said—
''It was no answer, to say that, in fact, the number of troops mentioned in the Mutiny Act are only those kept up in Great Britain, exclusive of those employed in the garrisons abroad; because Estimates were every year laid before Parliament, and supplies granted for the express purpose of supporting the troops kept in those garrisons, as well as in Great Britain; and, therefore, the one had the consent of Parliament as well as the other."—[Parl. Hist., xviii. 833.]
Serjeant Adair was a man of considerable reputation in his day; but I am not obliged to rely on his authority, because your Lordships have seen that Lord Chancellor Bathurst, in speaking upon the same question, admitted that Gibraltar and Minorca came within the substance of the principle, and only justified the step taken by the fact that we were then at war.
My Lords, this brings me to what may be called the second division of the subject—namely, that arising out of the legislation for the Government of
India in 1858. Your Lordships are aware that the Act for the Government of India contains a clause of great importance, which bears upon this subject, and on which the second proposition which I have submitted to your Lordship depends. The terms of that clause are as follows:—
Except for preventing or repelling actual invasion of Her Majesty's Indian Possessions, or under other sudden and urgent necessity, the Revenues of India shall not, without the consent of both Houses of Parliament, be applicable to defray the expenses of any military operation carried on beyond the external frontiers of such Possessions by Her Majesty's Forces charged upon such Revenues.
It is quite clear that the present case does not fall within the exception stated in that clause. There has certainly been no actual invasion of Her Majesty's Indian Possessions, and, however serious the present emergency may have been considered to be on this side of the world, it would not justify any steps being taken under the other branch of exception laid down in the Act, which the context plainly shows to mean a sudden and urgent necessity with respect to the safety of India. That being the effect of the clause, I will, with your Lordships' permission, advert briefly to its history. The Bill, as introduced, did not originally contain that clause. There had been a clause, not identical with it, in the first Bill introduced in the same year, 1858, by the Government of Lord Palmerston, which was to the following effect:—
Provided no such military Forces as aforesaid, or any other military Force hereafter paid out of the Revenues of India under this Act shall, while so paid, be employed out of Asia.
When the change of Government occurred, the late Lord Derby brought in the Bill which afterwards became law. It was, in the House of Commons, that Mr. Gladstone, on the 6th of July in that year, proposed a clause, differing from that which we now find in the Act in this respect—that it proposed to prevent the employment of our own Indian Forces beyond the frontier of Her Majesty's Indian Possessions, except with the consent of Parliament, or in cases of emergency. When Mr. Gladstone proposed that clause, he made use of some expressions which I think it right to read to your Lordships—not so much on account of Mr. Gladstone's authority,
but because of the assent given to them by the then Secretary of State for India, the present Earl of Derby, who had charge of the Bill. Mr. Gladstone insisted on the danger of leaving it
in the discretion of the Executive to make use of what might be called extraneous finance and an extraneous Army for the purpose of making war, the expense of which was to be hereafter charged on the British people."—[3 Hansard, cli. 1011.]
Lord Stanley (accepting the clause with only a slight verbal change, suggested by the present Lord Chancellor, then Solicitor General) said that Mr. Gladstone "had said nothing to which he was not prepared to assent." When the Bill came up to this House on the 19th of July, the late Lord Derby proposed that the form of the clause should be changed, so as to make it stand as it is at present. It had been objected to in the House of Commons by Lord Palmerston, and in the House of Lords it was still objected to in its altered form by several Peers then in Opposition, including my noble Friend behind me (Earl Granville), as interfering, more than was safe or desirable, with the Prerogative of the Crown: and that for a very plain reason—namely, because it would operate, not in time of peace only, but also in time of war. In answer to those objections, Lord Derby said—
The Crown would be at full liberty to employ those Forces in any quarter of the globe for which, by the terms of their enlistment, they were eligible. It being the undoubted Prerogative of the Crown to make war and peace, the constitutional check upon the exercise of that Prerogative was the sanction of Parliament, by the granting of pecuniary resources. … The clause did not prevent the Crown from making use of the Indian troops; subject only to this—that, as a general rule, the expense of those troops must be defrayed by Parliament; and the same constitutional check, therefore, was imposed on the Crown with respect to troops serving in India which was imposed with respect to troops serving in every other part of the globe."—[Ibid. 1697.]
The noble Earl the present Prime Minister had spoken in the House of Commons to the same effect. I do not see a word there to which reasonable exception can be taken, or which is inconsistent with either of my propositions. There is not a word there about moving troops from India in time of peace—the whole argument was, that in case of war the Crown would be able to use these troops out of India, subject to
the control which Parliament might exercise by refusing Supplies; and that any troops which might be so moved would be subject to all the Constitutional checks and safeguards which would be applicable to any other part of Her Majesty's Forces serving beyond the limits of India.
§ What has been the practice since the time to which I am referring? I find that the Votes, the Appropriation Acts, and the Mutiny Acts, have all mentioned numerically the whole Army of the Queen, excepting such part of the troops as were serving in the Indian Possessions of the Queen; in addition to which, care has been taken to let Parliament know how many European troops were, from year to year, actually serving in India. It is remarkable that, almost as if anticipating the present discussion, and giving beforehand a crucial answer to the arguments that might be used in support of the course which has been taken, the language of the Mutiny Acts underwent in 1863 a change which has been continued down to the present year, and from that date gave the numerical total of the Forces serving, or to serve, for the following year, "exclusive of the numbers actually serving within Her Majesty's Indian Possessions"—as if the expressions formerly used had been too ambiguous. I do not suppose that the present question was foreseen; but the alteration in the terms is useful, as showing distinctly the sense of Parliament, that the number voted was meant to include all Her Majesty's disposable Forces, which could be used for the purposes of a standing Army, except such troops only as, from time to time, might be actually serving in India; and that, when Indian troops might be moved to places other than India, the fact should be made known to Parliament, so that, by means of Supplementary Votes, or otherwise, a Constitutional and Parliamentary sanction might be obtained for their employment and payment.
My Lords, I now come to the action which has been taken—for action has been taken—on this view of the law; and we are not left to mere abstract arguments with reference to this matter. My contention is, that according to the terms of the Mutiny Act, it is altogether contrary to law to exceed, elsewhere
than in India, the number of men actually voted for the service of the year, and mentioned in the Mutiny Act, and I shall endeavour to prove this from what has been said and done. I also contend that it is against the express words of the 55th clause of the India Government Act to use the Revenues of India without the consent of Parliament for the payment of these troops; and that it is no answer on the part of the Government to say that they intend, at some future time, to ask Parliament to sanction, or to refund that payment. What has been done is opposed to the letter of both the Statutes to which I have referred, and it is also opposed to the great and broad Constitutional principle which underlies them both. It cannot be said that what has been done has resulted from inadvertence or oversight; inasmuch as on three previous occasions the same question has arisen in Parliament, and with one uniform result. The first occasion was in the year 1863—the very year in which the words "Exclusive of the numbers actually serving in India" were first inserted in the Mutiny Act. In that year a Maori outbreak occurred in New Zealand, and Sir George Grey, the then Governor of the Colony, sent a message to the Duke of Newcastle, suggesting that it would be very useful if some Sikh troops could be sent from India to his assistance, the case being one in which help was urgently required. The Government thought that the application was reasonable, and it was agreed that the troops should be sent. On the 23rd of July a debate arose in the House of Commons on the proposal to send 3,000 Indian Sikh troops to New Zealand. In the course of the debate, my right hon. Friend Mr. Forster used words which I quote, not as of authority, but because they produced their effect. He said—
He did not object to the employment of Sikh troops in New Zealand; but it appeared that, by little and little, the Crown was getting the disposal of a much larger Force than was voted by Parliament; and it was highly important that the relations in which we stood to the Indian Army should, in this respect, he clearly established and understood. The subject was noticed when the Bill for amalgamating the Indian with the Queen's Army was under discussion; and the difficulty was foreseen by the Chancellor of the Exchequer, who introduced a clause to meet it. It was a high breach of the privileges of the people to maintain a standing
Army without the authority of Parliament; and the precise number of men of which the Army was to consist was annually voted by the House. But if they permitted the employment, without remark, of Indian troops out of India, although there might appear reasons for it, the result would be to place at the disposal of the Crown an Army of 100,000 or 200,000 men beyond the Force directly sanctioned by the House."—[3 Hansard, clxxii. 1291.]
Lord Palmerston, who answered Mr. Forster, justified the proceeding as one of urgency; the expense of which, if not met out of the money already voted, or by the Colony, would be asked for from Parliament in the next Session. Lord Palmerston showed a bold front to Mr. Forster on that 23rd of July; and on the 25th the Duke of Newcastle sent the following despatch to Governor Sir George Grey:—
On learning the apprehensions which are entertained by yourself and your Government, I wrote without delay to the Secretaries for War and for India, requesting that you might receive immediate assistance. I have every reason to hope that a European regiment will be at once sent to you from Ceylon and two Sikh regiments from India, unless, happily, the occasion for their services in New Zealand shall have passed away before they can be embarked.
But what was the result? It is not difficult to see, that, between the 23rd and the 27th, the Cabinet must have had an opportunity of deliberating on what had been said in Parliament; and, on the 27th of July, two days after his first despatch, the Duke of Newcastle wrote again to Sir George Grey in these altered terms—
With reference to my despatch No. 78, of the 25th inst., I have now to acquaint you that Her Majesty's Government have not considered it desirable to send from India the two Sikh regiments for which you have applied. The Governor General for India has, however, been desired to despatch immediately to the Colony two of those regiments which would, under other circumstances, have returned home during the present season.
I am now going to quote the authority of a man whose name must have considerable weight with noble Lords opposite, because of his great reputation with them on military matters, and because of his public services—I mean General Peel. General Peel, on the 9th of March, 1863, speaking in the House of Commons, took exception to the omission from the Vote of men, then proposed by Sir George Lewis, of two regiments of Indian Native Infantry employed in China; and he moved to reduce
the money Vote so far as it covered their pay and clothing. He said—
His object was to prevent any Government employing a Native Indian Army in China at the charge of this country, without the House knowing and having control over the expenditure. He wanted the right hon. Gentleman (Sir George Cornewall Lewis) to add these two regiments to the number to be voted, and then the House would know what the actual Force was; for it was quite evident that the number of 148,242 set down in the Estimates was not the total Force."—[3 Hansard, clxix. 1277.]
Nothing was done in consequence of that at the time; and, in the following year, the Vote, as again brought forward, still omitted those two regiments from the number of men to be voted. It was stated, however, on behalf of Her Majesty's Government, that there was no objection to including them in the Estimate; and a statement of their actual number was laid before the House. On that occasion General Peel said—
Last year, when the Indian troops were first noticed in the Army Estimates, and a sum of money was taken for their payment, no number was given, and there were no means of ascertaining their number. … The result of what then took place was that this year not only the amount of cost, but also the number of men, was given. Certainly, if the control of the House was necessary in one case, it must be in the case of the Indian Native troops. [Colonel SYKES: 'Serving out of India.'] If any part of the Native Indian Army could be employed without a Vote of that House, those troops were altogether removed from Parliamentary control. In the case of ordinary troops there were two checks—the Mutiny Act, and the money voted by Parliament for the pay of the troops. But neither of these checks applied to the Indian troops. Native Indian troops were not liable to the Mutiny Act, being expressly excluded. … and were ruled by Articles of War expressly framed for India; and the House had no control over Native troops through its privilege as to money Votes, because those troops were paid, in the first instance, by the Indian Government, and the expenditure never came under the notice of the Imperial Parliament till long after it had been incurred."—[3 Hansard, clxxiii. 1431.]
The consequence of what then occurred was this—that from 1865 to 1872—the last occasion on which there has been any employment of Native Indian troops out of India—the number of those troops to be so employed in each year was regularly voted by Parliament; though they were not included in the numbers mentioned in the Mutiny Acts of those years. It is true that the numbers were small; but the smaller the numbers, the more important, as illustrating the principle. Lord Hartington,
Sir John Pakington, and Mr. Cardwell, were the successive Secretaries of State who moved those Votes. In 1865 the number of Indian Native troops voted was 178. They were employed in China and the Straits Settlements. The same number was voted in 1866 and in 1867. In 1869 the number was 880, and, in the two following years, 1,760. The Army Votes in 1866 were in this form—and, in such matters, form is of importance—
First:—"That a number of Forces, not exceeding 138,117 men, be maintained for the service of the United Kingdom of Great Britain and Ireland from the 1st of April, 1866, to the 31st of March, 1867, inclusive.
There, my Lords, "the service of the United Kingdom of Great Britain and Ireland" means the service of the standing Army, as voted by Parliament, for all Imperial purposes. The second Vote followed:—
That a number, not exceeding 178 of Native Indian troops belonging to Her Majesty's Native Indian Army, be maintained beyond Her Majesty's Indian Possessions.
In the present year, there is only one Vote, for a
total number of men, including the staff of the Militia Forces on the Home and Colonial Establishments of the Army, exclusive of those serving in India, 135,452;
and that number has passed into the Mutiny Act of this year,
exclusive of the number actually serving within Her Majesty's Indian Possessions.
And now, my Lords, I come to the latest precedent. It is that of 1867, and it arose out of the Abyssinian Expedition. The Native Indian troops employed in that Expedition were so employed during a time of Recess, without the previous, though with the subsequent consent of Parliament. They were, from the first, paid out of Indian Revenues. But what occurred? An Autumn Session was held for the express purpose of getting that consent. In the course of the discussion which arose in November, 1867, on the Message from the Crown, Mr. Gladstone, referring to the 55th clause of the India Government Act, said—
This was the very thing the Act of 1858 was passed to prevent. If the application of the Indian Revenues, by way of advance, be not prohibited by the clause as it stands, the clause is little better than a dead letter.
Two days later, on the 28th of November, Sir Stafford Northcote moved Resolutions for the payment of the Indian troops employed on that Expedition out of Indian Revenue. Sir Stafford Northcote, who is always as frank as the interests of the public service will permit, but whose frankness differs in its manifestations under different circumstances, said, in moving these Resolutions—
I am bound to say, wishing to be as frank as I can with the Committee, that, although the question is by no means free from doubt, I am inclined to think, upon a very strict interpretation of the Act, it may be held that what we have done is outside the letter of the law. The point on which we are challenged, so far as I understand, is this:—In the application of the Revenues of India to the purposes of the Abyssinian Expedition, as far as it has hitherto gone, we have been proceeding upon the view, not to their ultimate application without the consent of Parliament, but only to their advance for the purposes of an Expedition, which advance will be repaid by subsequent payments from the Imperial Revenue. I am inclined to think that the wording of the clause would, strictly speaking, prohibit that proceeding."—[3 Hansard, cxc. 359.]
I certainly regard that as a very frank admission, indeed. Your Lordships will, I think, be of opinion that there has been no occasion on which the same question has arisen in so practical or important a form as on the present occasion; but, on every occasion which the question has arisen, the result has been the same. Lord Palmerston, a man as inflexible of purpose as any man could be, abandoned the intention he had formed, as I have shown, when he gave it further consideration, because he could not reconcile that intention with the existing law. General Peel, for several successive years, caused Votes of the House of Commons to be taken for the numbers of the Native Indian troops employed out of India; and Sir Stafford Northcote admitted that the payment of Indian troops serving beyond the limits of Her Majesty's Indian Possessions out of Indian Revenues, even by way of an advance intended to be afterwards repaid, was, strictly speaking, prohibited by Act of Parliament; although he pleaded, by way of extenuation, that others had done the same thing before, and that it was always the intention of Her Majesty's Government to come as soon as they could to Parliament to obtain assent to what had been done.
This, my Lords, is no mere matter of form—it is a matter of principle. If that
principle be violated, the effect may be to take away the practical securities intended to be given to the nation by the Bill of Rights. It is no answer to plead the general control which Parliament has in the matters of Supply. It is no answer to say that the Government has a great majority, which is sure to approve their action, and that it little signifies whether that approval is asked sooner or later. It is of the very essence of the Constitution and of the safety of our civil government that the power of the majority should not be so strained; and that, when other checks have been provided, you should not rely merely on the power of a majority. And, my Lords, if I could give no other reason, I would insist upon this—that the observance of these checks and rules enables Parliament to form an unprejudiced judgment upon the measures which it is proposed to take, and that their neglect deprives it of that power. When troops have been actually employed, they must be paid; and when advances have been made out of the Indian Revenue, Parliament has no choice but either to leave the charge on that Revenue, or to provide for its repayment. My Lords, I shall not dilate further upon that subject. I prefer to quote words by no means without application to the present occasion, uttered by one who was able to give much more forcible expression to his views than I can, and by one of much higher authority. The words are these—they were used in the House of Commons in the debate upon that very Abyssinian Vote—
It is not any present danger I fear, as resulting from the present step; but, having regard to the future, I do not like India to be looked upon as an English barrack in the Oriental seas, from which we may draw any number of troops without paying for them. It is bad for England, because it is always bad for us not to have that check upon the temptation to engage in little wars"—
[I suppose it would be equally so as to great wars]—
Which can only be controlled by the necessity of paying for them. But it is bad, very bad, for India; because if there were a weak, or a timid, or too facile, a Governor General in that country at the time of any similar operation, you might have India seriously denuded of troops in order to suit the Imperial interest, while there would be this precedent to prevent you from censuring any officer who pursued such a course. I think
that the precedent of the Persian War, which has been mentioned in this discussion, is applicable in more respects than one; because, if I am not mistaken, at the time the Mutiny broke out, part of the troops which should have been guarding India were absent on that war. Now, this is a warning which we ought to lay to heart. If this garrison which we keep in India is—as all Indian authorities assure us—necessary for maintaining that country in security and peace, that garrison ought not to be rashly diminished. If, on the other hand, it is too large, and India can for any length of time conveniently spare those troops, then the Indian population ought not to be so unnecessarily taxed."—[3 Hansard, cxc. 406.]
My Lords, I am not sure what number of troops were employed in the Abyssirian Expedition, but I think they were not more than are now proposed to be removed from India. The Member who uttered these remarkable words in 1867 was a man of no small weight—it was Her Majesty's present Secretary of State for Foreign Affairs.
My Lords, I have now brought my remarks to a close, but I will say a few words in justification of the course I have taken in not concluding with a Motion. It is a difference between the practice of this House and that of the House of Commons, not unattended with some advantages, that we may raise discussions which they cannot, unless they conclude with a Motion. If, in the public interest, it seemed necessary to take the same course here, I should not be in the least afraid to undertake the task of putting my propositions in the form of a Motion. But, my Lords, on this occasion, it has appeared to me, and to the Friends with whom I act, that the public interest which we have in view may be effectually promoted without any Vote of this House; and, by adopting this course, I hope, in the first place, we shall avoid anything like controversies on mere matters of form or of words. This is a question about matters of substance, not of words. In the second place, from the nature of the question, from its very important bearing, not only at the present time, but it may be for all time, upon the interests of the country, I think there is much convenience in a form of proceeding which avoids imputations of personal censure or of Party attack; and I am the more satisfied with the course I have adopted because I infer, from what is passing elsewhere, that if I had put it in the
form of an affirmative proposition, I should have been met, not by any negative issue, but by a very general reference to existing law and practice, informing me, at the same time, that Her Majesty's Government consider it to be
unnecessary and unexpedient to affirm any Resolution tending to weaken the hands of Her Majesty's Government in the present state of Foreign affairs.
Well, I do not ask your Lordships to affirm any Resolution "tending to weaken Her Majesty's Government in the present state of foreign affairs;" but I have thought that the occasion was one which absolutely demanded, from those who had Constitutional law and principle at heart, protest and criticism. That protest I have made; that criticism I have offered; and I hope, and confidently believe, that they will not be unattended with some public advantage and utility, now and hereafter.
THE LORD CHANCELLOR
My noble and learned Friend(Lord Selborne) has called your Lordships' attention to a subject of much interest and importance; and I own I cannot but rejoice that a subject which has been so much misunderstood out-of-doors, and which, I am afraid, has been imperfectly considered, even by my noble and learned Friend, has been brought at once under the light of public discussion. In order that your Lordships may see that I am at one with the noble and learned Lord as to what is the point now to be examined, let me remind your Lordships of those views of the question, which he properly stated he did not mean to approach, and upon which I do not mean to make any observations. He said that he did not on this occasion challenge or propose to argue the policy or the expediency of the moving of any part of the Native Indian Army for employment out of India. My Lords, that is a subject of great interest. It is a question upon which different opinions may be entertained. When it is thought fit to raise that question in this House, Her Majesty's Government will be prepared to state the reasons, in point of policy and expediency, upon which they have acted; and they entertain a confident hope that they will have the full assent of your Lordships, as they believe they have the assent of the country, to the step they have taken. My Lords, another subject 212 which my noble and learned Friend said he should not refer to, and to which I do not mean to refer, is the question of the provision to be made by the other House of Parliament for the maintenance of the troops which have been moved to Malta. Upon that subject, Her Majesty's Government have stated, and stated in the most emphatic manner, that their intention is to apply to Parliament—to lay before the other House the expenditure which would be incurred by the removal of these troops, and to ask the assent and support of the other House for that expenditure. There is no Government which, in any time of emergency or difficulty, has not over and over again had to face a question of this kind. There is no Government in this country which has not at times incurred an expenditure or made an expenditure of money which, in the first instance, is not authorized, and for which they have had to come to Parliament afterwards for assent to an expenditure already made or already incurred. My Lords, whether that expenditure is only incurred, or whether it is made, for temporary purposes, out of a fund which has afterwards to be recouped, the principle is the same—the Government have done the thing upon their own responsibility and risk—they have to come to Parliament and state what has been done, and they have to ask, retrospectively, the consent of Parliament to their act. Upon that point we have very high authority, beyond which I have no desire to go. In the course of the last financial year, Her Majesty's Government came down to the House of Commons for its sanction to an expenditure, beforehand, of a very considerable sum of money. That step of the Government was challenged by persons "elsewhere," who objected to what was done. It appeared to many to be a safe and judicious course to ask for the assent of Parliament to an expenditure which might become necessary on a sudden occasion with regard to which no delay could be brooked. An objection was, however, taken, and the Government was told that there was a higher and better principle upon which they ought to have acted. It was said in the debate, in the other House, on the 8th of February—He (the Chancellor of the Exchequer) says a sudden emergency may arise, and he may want transports and other means to meet the emergency. 213 If a sudden emergency did arise, the Government must know their duty too well to wait for a Vote of this House. No Government worthy of its place but would, upon a sudden emergency, give the orders which the circumstances of the time might demand, and then come down at the earliest moment in their power to ask the concurrence of the House in what they had done. Undoubtedly, that is the principle on which all Governments have acted in this country, a principle which has never been challenged."—[3 Hansard, ccxxxvii. 1370.]That was the opinion as to the Constitutional course that ought to be taken given by the late Prime Minister (Mr. Gladstone), and that is the course we have taken.
My Lord, these questions being put out of the ambit of our discussion, I come to what, after all, is a dry and bare legal and Constitutional question, although it has taken two hours by the clock to call your Lordships' attention to it. I think it is a simple question; but, like every other question, it may be overlaid with matter—and, if it be, it is necessary to strip away and to put aside all the irrelevant and perverted matter by which a simple and plain question has been covered, and to ask your Lordships' judgment upon the question as it stands divested of all those irrelevancies. The Notice of my noble and learned Friend is a very simple one; it affirms or suggests one proposition which may be expressed in very few words. The proposition which the Notice expresses is this—that it is unconstitutional in time of peace to remove any part of the Native Army of India out of Her Majesty's Indian Possessions without the assent of Parliament. That is a very short proposition, and one which, once that all which is irrelevant has been explained and discarded, may be determined without any great length of argument on the one side or the other. That is the proposition of which my noble and learned Friend has given Notice.
But before I address myself to it, I must call attention to what I cannot but consider a remarkable occurrence which has come under our notice. It was about a week ago that the noble Earl the Leader of the Opposition in this House (Earl Granville) gave a Notice on behalf of my noble and learned Friend, who was then absent. The next evening my noble and learned Friend came down and said he had been 214 given to understand there was a similar Motion coming on in the House of Commons, so that there would be a simultaneous discussion in both Houses of Parliament upon this subject, and it was the opinion of himself and of those who acted with him that it would be better to have it upon the same evening; and, accordingly, the debate here was fixed for this evening. I have no right to say what is being done at this moment in another House of Parliament; but I have in my hand a proposition which has attached to it the name of an eminent Leader of the Liberal Party; and this is stated to be the opinion which he is prepared to maintain—The Marquess of Hartington:—Military Forces of the Crown.—That by the Constitution of this Realm no Forces may be raised or kept by the Crown in time of peace, without the consent of Parliament, within any part of the Dominions of the Crown, excepting only such Forces as may be actually serving within Her Majesty's Indian Possessions.Of course, the first observation which must occur to your Lordships is this—that if this is the proposition which is to be submitted to the other House of Parliament, it is entirely a different one from the proposition contained in the Notice before us. It is the first occasion in Parliamentary history on which a simultaneous discussion has been fixed for the two Houses to discuss upon the same evening two different questions. It is difficult to see what virtue there can be in having the discussions on the same night. One proposition may be right, or the other may be right, or they may both be wrong; but they are perfectly different propositions. The proposition of my noble and learned Friend relates to the employment of troops which are raised with the consent of Parliament. The proposition of Lord Hartington relates to the raising of troops without the consent of Parliament. The noble and learned Lord, laving probably had his attention drawn to the great anomaly of Leaders of the Liberal Party advancing different propositions in the two Houses, has endeavoured to lead your Lordships up to two other propositions which he now puts forward as covering the whole ground. So they may do; but these were not the propositions of which he gave Notice. He gave Notice of a simple proposition implying the want of power to move Indian troops out of India without the 215 consent of Parliament. A noble Lord is affirming "elsewhere" that, looking broadly over the whole of Her Majesty's Dominions in every part of the world, in no corner in any one of them can any troops be raised or kept which can be called troops of the Crown unless they are included in the number of men mentioned in the Mutiny Bill. I must, therefore, in the first place, say a few words about the proposition of the Marquess of Hartington—because the noble and learned Lord has shown more or less willingness to adopt it. Where is the authority for the proposition that the consent of the English Parliament must precede the raising of troops in any and every portion of the Dominions of the Crown, no matter how those troops are to be maintained? I say nothing about a time of peace or a time of war, for a separate discussion would be required to determine what is a time of peace or a time of war. The noble and learned Lord found great difficulty in explaining the exact meaning of the Bill of Rights, and I think there is very great difficulty from his point of view. It says that maintaining an Army in time of peace within the Kingdom without the consent of Parliament is illegal, and at that time "the Kingdom" was England. After the Union with Scotland, "the Kingdom" became Great Britain. After the Union with Scotland, and before the Union with Ireland, we know that throughout the last century Forces were kept up by the Crown in Ireland without the assent of the English Parliament. Does anyone say that that was a violation of the Bill of Rights? Since the Union with Ireland, the wording of the Mutiny Act has become "the United Kingdom of Great Britain and Ireland;" and the understanding between the Parliament and the Crown has been declared to be that there is to be no standing Army kept up within the United Kingdom of Great Britain and Ireland in time of peace without the consent of Parliament. That is the interpretation which Parliament yearly puts upon the well-known clause of the Bill of Rights, as applied to the present state of affairs. Does the noble and learned Lord mean to say that Malta is part of the United Kingdom of Great Britain and Ireland? Where, then, is the authority for that proposition of the Marquess of Hartington? 216 I do not stop there. I take the Mutiny Act, and in the 4th clause of the Act I find a most clear distinction drawn between troops in a Colony or Dependency of the Crown which cannot serve in the United Kingdom and those which can serve in the United Kingdom. The 4th clause provides that all officers and soldiers of any troops—of any "troops," observe—mustered and in pay, which shall be raised and serving in any of Her Majesty's Dominions abroad, or in places in the possession of, or occupied by, Her Majesty's subjects, and under the command of any officer having any commission immediately from Her Majesty shall be subject to the provisions of the Act and of the Articles of War. The troops may be raised in any Colony or Dependency. The clause does not stop there; but it says that if, having been made prisoners of war, they be sent to Great Britain or Ireland, although they are not to serve therein—because they would be in excess of the number sanctioned by Parliament—the clauses with regard to billeting are to be applicable to them. Therefore, it is assumed that there may be in all other parts of the Dominion of the Crown out of the United Kingdom, a raising of men which shall be Forces of the Crown, which may serve under the Queen's Commission, which shall be subject to the Articles of War, which may not come into this Kingdom to serve, but which, if made prisoners, may be billeted, although they may not serve.
But the Motion of the Marquess of Hartington is an impeachment against the whole system of procedure in our Colonies. There is scarcely one of them in which there have not been such Forces. The noble and learned Lord said he did not speak of local Forces which might be raised in the Colonies, whether as Militia or under any other name, but which could not be moved out of the places where they were raised. But what has the removability of troops to do with the Motion of the Marquess of Hartington?
This is the fifth time the noble and learned Lord has referred by name to a Member of the House of Commons. I should like to know whether he is in Order?
§ EARL GRANVILLE
The Question should probably be, whether the noble and learned Lord is in Order in discussing a Motion which is to be made in the other House?
THE LORD CHANCELLOR
I do not in the least know what Motion is to be made in the other House of Parliament; but I said I had had before me what I understood to be Lord Hartington's opinion on the subject. If the noble Earl is prepared to say that this is not Lord Hartington's opinion on this subject, I am prepared to withdraw all my observations. What, then, is the fact as regards the Forces of the Crown serving under the Queen's Commission? I find that there are such Forces in Canada, New South Wales, Victoria, New Zealand, British Guiana, Jamaica, Honduras, St. Vincent, Grenada, Antigua, Dominica, Gambia, Sierra Leone, and St. Helena—and all of these are Forces of the Crown not included in the numbers mentioned in the Mutiny Act. They assume various forms. Sometimes they are in the form of a standing Army; sometimes in the form of a Militia. They are called out from time to time, and they are under the command of officers bearing Her Majesty's Commission. The service is compulsory; and with regard to one of the places mentioned—Canada—they number, I believe, in one year something like 45,000, and they are bound to serve either within or without the Dominion. With regard to some of these Colonies—those having Representative Institutions—it is possible that permission may have been given them by the Imperial Legislature to raise Forces of this kind; but I will take the Colonies to which the observation does not apply; and in these Colonies there are Forces of the Crown, without any authority of the Parliament of the United Kingdom, but also without any violation of the Bill of Rights or the Mutiny Act. I now come to the proposition of my noble and learned Friend. ["Hear, hear!"] Yes, but the noble Duke who cheers me appears to forget what has happened. The proposition of my noble and learned Friend is the proposition of which he has given Notice; but the noble Duke forgets that my noble and learned Friend adopted in his speech the other proposition, and it is for this 218 reason that I passed aside to answer that other proposition.
§ LORD SELBORNE
said, that the proposition he had laid down was expressed in its own terms, and if they were to be criticized, it would be better that those terms should be quoted than others.
THE LORD CHANCELLOR
My noble and learned Friend has placed a proposition on the Notice Paper, and we understand what that proposition means; but, in his speech to-night, he has expressed two propositions which are not on the Paper. If I understand one of those propositions rightly it is the same, in effect, as that of Lord Hartington—namely, that there cannot be maintained in the Colonies or Dependencies of the Crown any Forces of the Crown except those included in the Mutiny Act.
§ LORD SELBORNE
said, he would repeat the words of his first proposition—That it is necessary to have the previous consent of Parliament before any Imperial Forces, in addition to the 135,475 troops voted for the year commencing the 1st of April, 1878, and included in the year's Mutiny Act, can be employed during the time of peace elsewhere than in Her Majesty's Indian possessions.He had been careful to explain in what sense he used the word "Imperial," as excluding any local Force not moveable at the pleasure of the Crown.
THE LORD CHANCELLOR
Where is the authority of my noble and learned Friend for importing into his definition the word "Imperial," and for saying that "Imperial" troops cannot be maintained?—there is no such expression in the Mutiny Act as "Imperial." That expression has been introduced by my noble and learned Friend in order to found an argument upon it; and he knows that, without the introduction of that word, his argument could not be maintained. The expression is that no "standing Army" can be maintained, and my noble and learned Friend adroitly imports the word "Imperial," in order to get rid of the Colonial argument, which he feels is fatal to his contention.
My Lords, I now come to the Notice of my noble and learned Friend. I have no wish in this matter to gain a mere triumph of words. I am anxious to consider the Constitutional question fairly. I believe that in this House—however we may differ on other points—both sides 219 are anxious to maintain the Constitution of the country. I believe I speak as much for one side as for the other—no one sitting on either side of the House would consent, knowingly, to what would be a violation of the Constitution; and speaking for Her Majesty's Government, I will say that if they believed for one moment that what they have done—even if carelessly done—had been a violation or straining of the Constitution, they would come at once to Parliament and ask for its indemnity for the act they had committed. But I think I shall be able to show your Lordships to demonstration that there has been no departure from the Constitution. In one respect, and in one respect only, has the act which has been done by the Government transcended the powers they possess—that one respect being the expenditure of money, with reference to which they have expressed their intention to apply to the House of Commons for the purpose of obtaining its retrospective assent.
The transaction of 1775 has been referred to, but nothing could be more irrelevant to the question. There were three distinct features in that case, not one of which is now present. The three distinguishing features of the transaction of 1775 were these—The King garrisoned Gibraltar and one of the islands adjacent by a number of Hanoverian troops; and the question was not as to the movement or employment of troops which were the troops of the Crown, but as to the employment of troops which were not the troops of the Crown. They were the troops of the Elector of Hanover. It so happened that the Elector of Hanover was also King of England, but that did not alter the circumstances of the case. The employment of the troops of Hanover was as much the employment of the troops of a foreign Power as if they had been the troops of France; their employment, therefore, was an unconstitutional act. What was the second feature of that transaction? There was in what was done a violation of the Act of Settlement. It was a violation of the Act of Settlement that any office or place of trust should be placed in the hands of foreigners. These troops being foreign troops, and the garrison of Gibraltar being placed in their hands, there was a violation of the Act in placing an office of trust in the hands of those who 220 were foreigners. But, in addition to that, the third feature in the transaction, which was very much insisted on in the debate, was that the Hanoverian troops were subject to no Mutiny Law. They had a Mutiny Law of their own, but they had left it behind them in Hanover, and when they went to the British Colonies they were a body of armed men subject to no discipline. They entered the employment of the British Crown, and the Crown trusted them with its fortresses. Yet, if they had risen in mutiny, they could not in any way have been controlled. But not one of these features applies to the present case. Beyond all doubt, the Government of that day had done what could not be justified. My noble and learned Friend says Lord Bathurst expressed an opinion that the provision in the Bill of Rights as to a standing Army extended to every part of the Kingdom. Now, it is well known that the debates of that time were very indifferently reported, and whatever observations Lord Bathurst made appear to have been made for the purpose of introducing a paradox. You say, said Lord Bathurst, that the Realms of England mean every part of the King's Dominions; well, suppose I admit that, the effect of it is, whenever there is war in any part of the King's Dominions, the Bill of Rights does not apply; this Kingdom, therefore, means America, and there is war in America, and that, therefore, these troops could be brought to Gibraltar. Now, is it possible that this is anything but a fanciful paradox of Lord Bathurst's?
My Lords, the question which your Lordships have to consider is not as to foreign troops, but as to the Forces of the Crown, duly raised under the sanction and authority of Parliament. Where and what is the limit placed on the authority of the Crown to use and to move its own troops? In the first place, I would remind your Lordships that the Native Indian Army is, since the Act of 1858, part of the Forces of the Crown; and, with regard to the forces of the Crown, the general rule is that it is the Prerogative of the Crown to move them to whatever place it may think fit, and that it is for those who assert, that in any particular case that Prerogative is restrained, to show how that restriction presses upon the Prerogative. As to the Prerogative of 221 the Crown, let me point out to your Lordships what the undoubted law on the subject is. The Prerogative of the Crown was defined so long ago as the reign of Charles II., in the Preamble of an Act, which Preamble has been kept alive, though the rest of the Act has been repealed. The Prerogative of the Crown is stated to be—Forasmuch as within all His Majesty's Realms and Dominions, the sole supreme government, command, and disposition of the Militia, and of all Forces by sea and land, and of all forts and places of strength is, and by the laws of England ever was, the undoubted right of His Majesty, and his Royal predecessors, Kings and Queens of England, and that both or either of the Houses of Parliament cannot nor ought to pretend to the same…That is the general rule with regard to the Prerogative of the Crown. I should like to fortify that position by reference to two eminent authorities to which I should think Members of the Liberal Party will attach weight. Mr. Fox, towards the close of the last century, was speaking on a subject which in the last century was of much interest—the right of the Crown to move the Irish Army. Mr. Fox, after remarking that the English and Irish Armies had different Mutiny Acts, which he thought inconvenient, then proceeded to make a proposal, the precise nature of which does not seem very clear. But he observed—Though he was an enemy to the dangerous influence of the Crown, he was a friend to the just Prerogative, and he considered the power vested in His Majesty, of sending troops to whatever place of His Dominions might require their assistance, as the most valuable Prerogative. It was on this ground that the Earl of Chatham said that retrenching the number of troops to be employed in Ireland was 'tearing the master-feather from the eagle's wing.' He considered, therefore, this Bill, as containing different laws, to be dangerous to the Prerogative, because it might prevent the Crown from sending troops from any other place of His Dominions to Ireland, or from Ireland to any other part of His Dominions in cases of emergency.What was the opinion of Lord Grey's Government as to the power of the Crown? Sir John Hobhouse, representing Lord Grey's Government, said—No House of Commons, at the commencement of every Session, could fairly call upon the Government to state the manner in which the Army of the country was disposed of at home or abroad. That was certainly a matter which should be left to the discretion of the Crown, and the existing Government, according to the 222 emergencies of the time, for there might be circumstances, with which the Government alone could be acquainted, to render it of the utmost importance that the mode in which the military Force was disposed of should be concealed. With the vast interests of our great Empire, with Colonies spread over the whole surface of the globe, it was apparent, looking to England, Ireland, and the West Indies, and, indeed, to all parts of the world, that no man could have a right to call upon the Government to proclaim how many troops were stationed in this place and how many regiments in that. It would not only be the grossest imprudence, it would be usurping the power delegated to the Government, and it would be exposing to those who might take advantage of such exposition what Force was to be stationed, in disciplined array, in different parts of the Empire.My Lords, this is the general and well-settled doctrine of the Constitution with regard to the power of the Crown over the disposition of its troops; and I repeat, it lies with those who desire to limit the Prerogative to show upon what principle they would limit it. If limited at all, it must be by some condition or limitation in the terms of the enlistment of the troops, or by some localization in the code of discipline for the troops, or by those precedents which, as my noble and learned Friend said, become, after a certain length of time, the law and custom of the case, or by some written statutory enactment. And now I proceed to the inquiry whether in any of these modes it has been limited? Remember, that this is not a question about raising or increasing an Army; it is a question of moving an Army which already exists—an Army which is undoubtedly the Army of the Crown. The inquiry is the simple one, whether that Army, like any other Army of the Crown, can be moved at the discretion of the Crown, or whether that discretion is limited by any of the modes to which I have referred? What is the case with regard to enlistment? What are the terms of enlistment of the Native Indian Army? The terms are these—I will be faithful to Her Majesty the Queen, Her heirs, and successors, and will go wherever I am ordered, by land or sea, and will obey all commands of the officers set over me even at the peril of my life.There is no doubt that there is no limit whatever imposed by the terms of enlistment. Well, then, is the Prerogative limited by the Code of Discipline? Has it been contemplated or not that the Indian Army may be employed out of India? I take the Act of 1834—an 223 Imperial Act of Parliament, which gives power to the Governor General in Council to make Articles of War for the government of the Native Indian Army—and what do I find in it? I find these words—It shall be lawful for the said Governor General in Council from time to time to make Articles of War for the government of the Native officers and soldiers in the military service of the Company, and such Articles of War shall prevail and be in force, and shall be of exclusive authority over all the Native officers and soldiers in the said military service to whatever Presidency such officers and soldiers may belong, or wheresoever they may be serving.Well, is it the case that the Articles of War do apply to the Indian troops serving out of the Indian Dominions? I find that they contemplated this very case, for they say—74.—Every General Court-martial shall, if held in British India, consist of not less than nine commissioned officers; but may, if held out of British India, consist of not less than seven commissioned officers.142 (e).—In the case of a Detachment General Court-martial held beyond the limits of British India, and not within the Dominions of the Princes and States of India in alliance with Her Majesty, &. …. Provided that, in detached situations beyond sea, or out of British India, or on service in the field, &c.So much for the discipline. I now come to the precedent or custon. I will take, in the first place, one very instructive document. It was a Report of a Committee of the other House of Parliament upon the subject of the employment of the Native troops, not many years ago. It was appointed on the Motion of Major Anson, and made its Report in 1868. Of course, I have nothing to do with the recommendations of that Committee; but I go to that Report as a convenient historical statement. The Committee, after hearing evidence as to the practice with regard to the Native Indian troops in times past reported upon that point—The Madras, Bombay, and Bengal Armies have been employed beyond seas from the earliest period of our connection with India. The Madras Army has garrisoned Amboyna, Ceylon, Ava, Mauritius, the Straits Settlements, Malacca, Java, Burmah, and China. The Bombay Army has been employed in Aden, China, Scinde, and now in Abyssinia; and the Bengal Army in Egypt, Java, China, Ava, and now in Abyssinia. The Bengal Army, previous to 1856, had only six regiments recruited on the agreement of general service; but in that year, the Madras Army being overworked, the Supreme Government altered the conditions of 224 recruiting, and, in the General Order, dated July 25, 1856, gave this reason for so doing.Now, this was the reason—It has become very inconvenient to Government, and it is also hurtful to the State, that a small portion only of the Bengal Army should be available for the service of the State beyond seas, and this inconvenience is not much diminished by the fact that the entire Native Armies of Madras and Bombay are enlisted without any limitation of their place of service.And, on this ground, the Order goes on to say—The Governor General will not henceforward accept the services of any Native recruit who does not at the time of enlistment distinctly undertake to serve beyond seas, whether within the territories of the Company or beyond them.There is, in this, no reference to a time of peace or a time of war; and no suggestion as to the consent of Parliament being required. Nor is it material that these movements of the troops were in the days of the East India Company. If the East India Company, who were the vicegerents of the Crown, could move the troops, à fortiori, the Crown could move them. The Committee continues—It seems difficult to believe that the Indian Government would have issued such an Order as this, if they thought that there were any real difficulties to overcome in the employment of Native troops beyond seas, or if they did not intend it to be a reality.Now, that is the Report of the Committee of the House of Commons. Was that Report challenged, or was it qualified, or in any way objected to from that day to this? Certainly not.
I will now go on to examine the specific instances in which the Native Indian troops have been used out of India. In deference to the noble and learned Lord, who seems to think it of some importance, I will take, in the first instance, the case in which Native Indian troops were ordered from India to the Cape of Good Hope. Notice was taken of the fact in the House of Commons, not on the ground of the unconstitutional or illegal character of the proceeding, but on the ground that if those troops were so used, the expense of moving them ought not to be charged upon the Indian Revenue. Lord Palmerston said he did not think the Indian Government should bear the expense out of their Revenue, or that it should be defrayed by contributions from 225 the Colony, and that the House would be asked next Session to grant a Vote to defray this additional expenditure. It was never even hinted that there was any question as to the legality of the employment of those troops out of India—the only question being one of money, and of who was to pay. The noble and learned Lord has found that the order for the troops was countermanded, which was probably done to save the financial controversy which was threatened in the House of Commons.
Now, I pass to the precedent with which the name of General Peel has been connected. Your Lordships who have the leisure to investigate that case will find it an interesting one. General Peel, as the noble and learned Lord says, was one of the most skilful, accurate, and experienced statesmen that ever presided over the War Department of this country, and he had an eye for Estimates the sharpness of which was never exceeded. The objection that was taken in the House of Commons was, not that the Government had acted illegally or unconstitutionally in employing Native Indian troops out of India, but that, having so employed them, they went down to the House of Commons and asked for a lump sum to defray the cost. As many noble Lords will, perhaps, recollect, General Peel made it what I may call his hobby to ascertain how much each man in the Army cost, and he had worked out the problem with such accuracy as to say that every British soldier costs £100—though I fear the cost is now somewhat more. His complaint, on the occasion referred to, was not as to the illegality of the employment of the troops, but to the way in which the Estimates were framed—which prevented him from being able to ascertain the average cost of each man so employed. I find that in 1863—General Peel moved that this sum be reduced by £38,000, 'repayment to the Indian Government for pay and clothing of two regiments of Native infantry employed in China.' …. He had great objection to the Government employing Native troops out of India, and he should therefore move to reduce the Vote by the sum which he had named. …Sir George Lewis found himself very much perplexed as to the mode in which he ought to deal with those Indian troops employed in China. He was told, when they were not introduced into the Estimates, that they ought to have been introduced, and that he was following an irregular course in making a transfer from one Vote to another when providing for those 226 regiments out of the moneys voted for other services. In order to obviate that objection, he had introduced them into the Estimates this year, and had followed the precise practice which had been adopted with regard to the Force maintained at Labuan. If, therefore, the sum of £38,000 for those two regiments in China ought to be omitted, so ought also £4,500 for the troops at Labuan. ….General Peel said the right hon. Gentleman had stated his wish to be the direct contrary of what he (General Peel) desired. His object was to prevent any Government from employing a Native Army in China at the charge of this country without the House knowing and having control over the expenditure. ….Mr. W. Williams (an hon. Member who at that time scrutinized every Vote on the ground of economy) said, that the course taken by the Government was unconstitutional, and he should support the Amendment.Sir George Lewis (the Chancellor of the Exchequer) could not admit that there was the smallest force in what the hon. Member called the constitutional objection to passing the item. If he had attempted to procure payment for these two regiments without a Vote of Parliament, something might have been said as to the unconstitutionality of that course, though he believed there were precedents for it."—[3 Hansard, clxix.]The contest of the noble and learned Lord to-night was reduced to the smallest possible point by the noble and learned Lord himself, when he said that the result of General Peel's Motion was, that from that time forward the men of the Indian Army employed out of India were included in the aggregate number of men voted in the Mutiny Act.
§ LORD SELBORNE
I did not say so. I said the exact contrary; but a Supplementary Numerical Vote was taken for them in each year; and I said that a Supplementary Vote would do just as well.
THE LORD CHANCELLOR
Then my noble and learned Friend relieves me from what I was about to do—to show your Lordships that these men were never included in the Mutiny Act, or in the numbers voted by Parliament, my noble and learned Friend says there was a Supplementary Estimate. Of course there was. The money required could not otherwise have been obtained. But the men were never treated as a portion of that standing Army which, in the Mutiny Act, was stated to have been voted by Parliament. So much, therefore, for the great precedent with which the name of General Peel was connected.
I must, however, beg to add to the precedents referred to by the noble and learned Lord, and I shall cite them 227 for the noble and learned Lord's consideration. In 1867 the Straits Settlements were removed from the Government of India to the Government of the Crown, through the Colonial Department. From 1867 to 1871 the Madras Native Infantry garrisoned the Straits Settlements in time of peace, and no Constitutional objection was taken to their being so employed; and can the noble and learned Lord show that the consent of Parliament was either asked or given for their employment? The same course was taken with respect to Hong Kong. The case of Abyssinia has been mentioned. In that case, the Chancellor of the Exchequer went down to the House of Commons—as he will do in the present case—and asked the House of Commons to recoup the expenditure incurred on an emergency by the Indian Government on behalf of the Empire. Did any speaker in the House of Commons on that occasion say, or even suggest, that the removal of the Indian troops to Abyssinia was an illegal act? The question was treated simply as one of the money which had or had not to be paid, and no speaker dealt with the question as being one in connection with which the Government could be said to have committed an unconstitutional act.
I will now say a word as to the assent of Parliament. The assent of Parliament is not a matter upon which, as I regard the matter, there can be any argument, as I do not expect anyone will stand up in this House or elsewhere and assert that it does not require the assent of the Crown, of this House, and of the House of Commons. There have been occasions on which the question has arisen how the assent of Parliament should be manifested. One of these occasions—alluded to by the noble and learned Lord—was in 1734, in the time of Lord Hardwicke. Some Members of this House thought that the assent of Parliament required an Act of Parliament to express it; but Lord Hardwicke said that, in his opinion, when the Crown came down and asked for a Vote of men, and both Houses responded to that Address by agreeing to the Vote of men asked for, that was the assent of Parliament within the Bill of Rights. I adopt that view, and it has been adopted on several occasions. Indeed, I should have thought that no Government would either overlook or violate that rule, considering 228 that it comes fresh before Parliament every year in the Mutiny Act. The Mutiny Act, in its recital, says that there must be no standing Army raised in time of peace within the United Kingdom without the consent of Parliament, and I should have thought the words so clear that they could not have been misunderstood; but they have been not merely misunderstood, but neglected, and actually violated—though only once. In the year 1870, which was a time of profound peace, as far as this country was concerned, and when Parliament was sitting, the Government of the day raised an addition to the numbers of the Army authorized by the Mutiny Act to the extent of 20,000 men; and I will venture to say that there is not a syllable on the records of your Lordships' House to show that your assent was asked to such increase in any shape or form. The men were raised on a Vote of the House of Commons, without an Address to the Crown—without any communication to this House, and without the assent of this House. The amount of the Vote of Credit of course found its way into the Appropriation Bill, and the Appropriation Bill came to this House. But the Appropriation Bill is the provision for the whole of the services of the year, and your Lordships' House has no power, as far as the Appropriation Bills is concerned, to do anything other than to accept or reject the whole. You cannot alter or modify it; and to say that in this way the assent of this House could be obtained to an increase of the standing Army, would be to reduce this Constitutional safeguard to a mockery.
So much for precedents. And now I would come to the question whether there is anything in the Statute Law to prevent the Government from removing those troops from India to any part of the Queen's Dominions without the consent of Parliament? I will just refer to a Statute which, although not now in force, was the governing Act for 40 years with respect to the Indian troops—I mean the Act of 4 Geo. IV. c. 81. That Act provided for the trial and punishment, if necessary, of officers or men in His Majesty's Indian Army who might be guilty of offences against the law in these words—Whenever any portion of such Native troops shall be serving in any country or place out of the possessions or territories which are, or may be, under the Government of the said United 229 Company, whether such be the Dominions of His Majesty or elsewhere, on the trial of all offences committed by any Native officer, or soldier, or follower, reference shall be had to the Articles of War framed by the Government of the Presidency to which such Native officer, soldier, or follower, shall belong.This shows clearly that at the time the Act was passed, it was in the mind of the Legislature that the troops might be serving either in or out of India—not merely on foreign ground, but in other parts of the Dominions of Her Majesty.
But now let me take the Act of 1858, the Act for the Government of India. The 55th clause, as it now stands, provides that the Indian troops should not be paid out of the Revenues of India, except when they are serving in the country; and this shows that the possibility of their so serving out of the country under the orders of the Crown was in the mind of Parliament. Otherwise, if the assent of Parliament to their movement was necessary, it would have been time enough, when that consent was asked for, to have considered how the expense was to be borne. But, what was the history of this clause? When the Indian Government Bill was passing through the House of Commons in 1858, a clause was proposed by Mr. Gladstone on the Bill in these words—Except for repelling actual invasion, or other sudden and urgent necessity, Her Majesty's Forces in the East Indies shall not be employed in any military operation beyond the external frontier of Her Majesty's Indian Possessions, without the consent of Parliament to the purposes thereof."—[3 Hansard, cli. 1007.]This proposal raised considerable discussion, and opinions concerning it were expressed by several leading statesmen. Sir George Cornewall Lewis said, in course of the debate, that—In his view of the matter, the general Prerogative of the Crown, in declaring war, was practically limited by the necessity of obtaining Votes of Supply from Parliament for the purpose of carrying on war. Beyond that constitutional necessity, the Prerogative of the Crown with regard to a declaration of war or concluding peace was unlimited. Suppose, however, the Governor General desired to make war, not for the purpose of repelling actual invasion or under other sudden and urgent necessity, he would have to communicate with the Home Government; and in what manner would the consent of Parliament be obtained? He presumed it would be necessary to obtain the consent of both Houses, and that it would be the duty of the Executive Government to introduce a Bill formally giving their consent to the Governor General's making war. That might be difficult to procure. Then the question might 230 arise whether, Parliament having consented to the commencement of a war, it was competent for the Governor General to terminate such war without the assent of Parliament. If they sanctioned such a principle, it might be extended to other wars, and they might eventually adopt the doctrine that the British Parliament, like the American Senate, should give its consent to all wars in derogation of the existing Prerogative of the Crown. If this clause were to have a practical effect, these points would have to be considered."—[Ibid. 1012.]Lord Palmerston, in the course of the same debate, said—He entirely agreed with his right hon. Friend who last spoke, that the consent of Parliament was not necessary previous to a declaration of war, because it was a fundamental principle of the Constitution that the power of declaring war and concluding peace rested with the Crown, the Ministers of the Crown being responsible for the manner in which they advised the Crown to exercise that Prerogative. To maintain that the previous consent of Parliament was necessary, either to the commencement of a war or to the conclusion of a peace, would be to introduce a principle destructive of the British Constitution; and he was somewhat surprised that Her Majesty's Ministers, who were the guardians of the Prerogatives of the Crown and of the Constitution of the country, did not rise and protest against doctrines which in his opinion were most inconsistent with Prerogative and the Constitution. … He thought the noble Lord (Lord Stanley) would act somewhat hastily, if he adopted the clause in its present form."—[Ibid. 1013.]The opinion of Lord John Russell, who followed Lord Palmerston on this occasion, was that—He was disposed, however, to concur in the objections raised by his noble Friend (Viscount Palmerston) to the terms of the clause. 'Her Majesty's Forces in the East Indies,' it was said 'shall not be employed in any military operation' beyond the frontier of India without the consent of Parliament. Now, supposing we had a war with some European Power, and that, this war being supported by the House of Commons, it was considered desirable for the Indian Army to attack the Possessions of this enemy of the Crown, it appeared to him the clause would prevent the employment of those Forces without the consent of Parliament. Thus if, prior to the attack on Java, when we were at war with the Dutch, the Governor General had been obliged to send to the Home Government, and they had been obliged to apply to Parliament to obtain authority for this Expedition, it might have failed altogether, because, by making it known to the enemy, through a debate in Parliament, you would entirely defeat your object. He doubted also whether the language of the clause would not have prevented the Expedition to Egypt."—[Ibid. 1015–16.]It was quite clear what the view of Lord Russell was. No doubt, he referred to a state of actual war; but his objection to the clause was that it would limit the power of the Crown in 231 the case of war being imminent, or with a view to objects of great Imperial importance, and render the accomplishment of those objects difficult, if it was necessary to come to Parliament for its assent. On that ground was founded the objection of those eminent men to the clause proposed by Mr. Gladstone, which would have prevented the movement of the Indian troops from India. Well, my Lords, Mr. Gladstone's clause was inserted in the Bill with some verbal alterations, and the Bill came up to this House. When the Bill reached this House, the late Lord Derby drew attention on the occasion of the second reading to the 55th clause. The noble Earl said—There are, I believe, only two other subjects to which I need now direct your Lordships' attention, and I allude to them because I think that, as far as they are concerned, the principle and the object of the Bill have been somewhat misunderstood. One relates to the employment of the Indian Army, and the other relates to the admission to the Civil Service of India. The 55th clause deals with the first of those subjects; and it has been objected to that clause, that it appears to interfere with the Prerogative of the Crown, inasmuch as it provides that none of Her Majesty's Forces maintained out of the Revenues of India shall be taken, except in cases of urgent emergency, beyond the frontiers of that country without the previous consent of Parliament. Now, it has been thought—and I confess that the wording of the clause makes it open to a construction which was not intended by its framers—it has been thought that that would be an interference with the undoubted Prerogative of the Crown to make war or peace. …. Our intention, however, is not to limit the Prerogative of the Crown, but to protect the Revenues of India; and, consequently, when we come to that clause, I mean to propose in it an Amendment which will, I think, remove all ambiguity upon this point. It will be to the effect that, except for the purpose of preventing or repelling actual invasion of Her Majesty's Indian Possessions, or in order to meet some sudden and urgent emergency, the Revenues of India shall not, without the consent of Parliament, be applicable to the expense of any military operation carried on beyond India by Her Majesty's Forces chargeable on such Revenues. That provision will impose a pecuniary check on the Prerogative of the Crown in regard to the Army of India such as already exists in the case of all other portions of Her Majesty's Forces."—[Ibid. 1458–9.]And what said the noble Earl the Leader of the Opposition in this House (Earl Granville) on that occasion? He thus addressed your Lordships' House—The noble Earl has already alluded to the fifty-fifth clause. I have very often remarked that when anything not very wise is done by any person, it is done at the suggestion of some one else wiser than himself. He who offers the 232 suggestion does not very carefully consider it, and the person to whom it is offered thinks he may adopt it, inasmuch as it has proceeded from a very sensible man, without that sifting to which he would subject his own proposition. Something of this sort seems to have taken place in the other House with regard to this clause. A very able man (Mr. Gladstone) in the other House suggested this clause, and the Government, to my great surprise, instantly adopted it. What is the clause? That, except in cases of great urgency, the Army in India shall not be employed beyond the frontier of Her Majesty's Indian Possessions without the consent of Parliament. That appears to me altogether unconstitutional. Then, how is the assent of Parliament to be signified? Is an Act of Parliament to be passed before any military operations can be executed? If so, I presume that it will be equally necessary to have an Act of Parliament declaring peace, and in this way you will entirely take out of the hands of the Crown one of its most important Prerogatives. I must say that if this clause be merely modified in the sense in which I understood the noble Earl to say he was willing to modify it, it will still be open to much objection, and I shall feel it my duty to ask your Lordships to reject it altogether."—[Ibid. 1470–71.]Well, my Lords, Mr. Gladstone's clause was removed in your Lordships' House from the Bill, and the clause in its altered form became that which is now the 55th clause, and in this form the noble Earl did not ask your Lordships' House to reject the clause; and he must, therefore, have subsequently satisfied himself that when it took its present form it was free from the Constitutional objection which he had pointed out—namely, that in the matter of the movement of Native Indian troops beyond the boundaries of India, it would limit the Prerogative of the Crown. My Lords, I entirely agree with the view expressed by the noble Earl. I believe that the clause, as it now stands, in no way limits, or professes to limit, the Constitutional or legal right of the Crown with regard to the movement of Native Indian troops. It does this, and this only—it protects the Revenues of India from bearing the cost of the movement of those troops. But the argument of my noble and learned Friend is this—that whatever the Act of 1858 does, the annual Mutiny Act by its wording prevents Indian troops being made available out of India without the assent of Parliament. But, in 1858, the Mutiny Act was just the same as it is now, and if any of those eminent statesmen, to whom I have referred, were of opinion that it prohibited such movement of the Native Indian troops, would they on that very ground have opposed the clause proposed by Mr. Gladstone? 233 It would be absurd to have had the discussions to which I have alluded if that were so. Well, my Lords, that being the history of this clause and its wording, I confess I am surprised that at this time of day, 20 years after it has passed, it should be gravely maintained that all the care and pains taken to alter and modify the 55th clause in its original form went for nothing, and that the clause in its present form produces just the same effect which would have been produced by the clause which was removed from the Bill.
My noble and learned Friend endeavoured to produce in the minds of your Lordships the impression that there was something in the Mutiny Act which in some way affected the Native Army of India. The fact is, that the words to which my noble and learned Friend alluded do not refer to the Native Indian Army in any way. They refer to Her Majesty's European Army—the White Army—serving in India, and there is nothing in the Act which refers to the Native Indian Army. The argument from the Mutiny Act requires a very short examination, and it will turn out to be as baseless as that founded on the Indian Government Act. But first, let me remind your Lordships of the point in the discussion at which we have arrived. I have shown your Lordships that the Native Indian Army are Forces of the Queen, and being so the Crown, primâ facie, has an absolute right to move them wherever the Sovereign may think fit. Those who say that that right is limited must show that it is so. I have shown to your Lordships that it is not limited by the terms of enlistment or by Code of Discipline; that, so far as precedents are concerned, there are numerous precedents for the employment of those troops out of India without any objection having been taken as to the legality of that step. I have shown that an Act in force for 40 years up to 1848 contemplated the employment of Native Indian troops out of India; and now the only question is, whether the whole of this body of evidence and proof is to be contravened by a few words of recital in the commencement of the Mutiny Act.
My Lords, in order to understand the effect and object of this recital, I would ask your Lordships to remember what was the position of the various Armies in India before and since 1858. 234 Before 1858 there were three different classes of Forces in India—the Regular Army of the Queen—next, the European troops kept up by the East India Company—and there were, thirdly, the Native troops of the East Indian Company. There were these three sets of Forces. How were those Forces dealt with by the Mutiny Acts? With regard to the Queen's regiments serving in India, they were subject to the annual British Mutiny Act just as much as if they served in England. With regard to the European White troops of the East Indian Company, they were subject to a Mutiny Act of their own. That was not annual, it was perpetual, and it was passed by the Imperial Parliament. With regard to the Native Indian Forces, they were subject to an Act of the Indian Legislature, made under the Imperial authority, as I have already pointed out. There were, then, three different sets of Forces, and three different Mutiny Acts. Now, the Act of 1858 provided that the two sets of Indian Forces should become the Forces of the Queen; and the consequence was, since the Act of 1858, we had, at first, three separate Forces belonging to the Crown—the British regiments, the White troops formerly belonging to the East India Company, and the Native troops. That state of things continued until 1863, and then an Act was passed bringing the European Forces, formerly belonging to the East India Company, under the annual Mutiny Act. That Act, in the Preamble stated—It is expedient that Her Majesty's European Forces in India should from henceforth be subject to the Acts for the punishment of Mutiny and Desertion, from time to time, passed for the government of Her Majesty's General Forces.But that Act expressly declared that it was not in any way to affect the Native troops of the Crown in India. They were to continue under their own Mutiny Act and Articles of War. The European Forces, therefore, and the European Forces only, in India, are within the Annual Mutiny Act.
Now, my noble and learned Friend takes out of the Preamble of the Mutiny Act these words, "exclusive of the numbers actually serving in Her Majesty's Indian Possessions," and he first assumes that these words refer to the Native Indian troops, and he then founds on this assumption the argument that the Native Indian troops must serve within 235 India and nowhere else; and that if they go beyond that it is a departure from the Mutiny Act. Well, that depends on the great question—what troops are meant by the words "exclusive of the numbers actually serving?" for if those words do not refer to the Native Indian troops, the argument of my noble and learned Friend falls to the ground.
My Lords, the words which my noble and learned Friend relies do not touch, and are not meant to touch, the Native troops. The Native troops are not brought within our Mutiny Act in any way. That is made clear from the clause which enacts—Nothing in this Act contained shall in any manner prejudice or affect any Articles of War or other matters made, enacted, or in force, or which may hereafter be made, enacted, or in force, under the authority of the Government of India, respecting officers or soldiers or followers in Her Majesty's Indian Army, being natives of India.On the other hand, the European Forces in India are within the Act, but the men are not to be reckoned numerically, unless they are at the depôts in the United Kingdom. If your Lordships will read the Preamble with this key to its meaning, all difficulty will at once disappear. The Preamble runs—Whereas it is adjudged necessary that a body of Forces should be continued for the safety of the United Kingdom, and the defence of the Possessions of Her Majesty's Crown, and that the whole number of such Forces should consist of 135,452 men, including those to be employed at the depôts in the United Kingdom for the training of recruits for service at home and abroad, but exclusive of the numbers actually serving within Her Majesty's Indian Possessions.Therefore, the meaning of the words which have caused my noble and learned Friend difficulty is perfectly clear. The Act is not to apply to the Native Indian regiments—the recital is to include those officers and men of the European Army of India who are employed in depôts in England and Ireland, and to exclude the number actually employed within Her Majesty's Indian Possessions.
But that this is the meaning of the meaning of the recital can be shown to demonstration. The noble and learned Lord has, in his Motion, properly spoken of the Vote recited in the Preamble to the Mutiny Act. I turn in the Estimates to the Vote, and you will find on one side it runs thus:—"The number of men, Regular Army, exclusive of India;" and, on the other side, 236 "the number of men of the Regular Army serving in India." Of course, therefore, "exclusive of India" means "exclusive of the number of men of the Regular Army serving in India," and the Regular Army throughout the Estimates means the Queen's European Army. The number of the European Army serving in India at the present time is about 62,000, and of the Native Army 125,000. It is a case of one-third and two-thirds. We have a Vote for the number of men, 135,452—that is the exact number provided for in the Mutiny Act; and then you have those serving in India set down as 62,650, which is the number of the White European Army, and not the number of the Native Army. Therefore, those who are excluded, and by the very word of your own Vote are excluded, from the enumeration of the Mutiny Act, are the 62,650, and are not the Native Army. My Lords, the case is thus brought to this simple point. Nothing can be shown which in any way fetters the legal and Constitutional power of the Crown to move the Indian Army anywhere except it may be the United Kingdom. The expense must, of course, be provided by Parliament, and this, which is the Constitutional check, is, at the same time, the only check on the Constitutional right of the Crown. How can that right be affected by the recital in the Mutiny Act, which does not relate to the Indian Army at all? This is the whole of this case.
My Lords, I agree with my noble and learned Friend that there is a very great difference between questions of substance and questions of form. But, my Lords, if the action of a Government cannot be challenged on a matter of substance, I think great care should be taken that misapprehension is not produced by challenging it on a question of form. If the noble and learned Lord had entertained the opinion that Her Majesty's Government had been chargeable with any error of judgment, with pursuing an erroneous and mistaken policy, as a matter of policy, in moving these Indian troops to Malta, under all the circumstances of the case, that question might have been raised before this House by a proper Motion on the subject. Nay, more, if it had been the opinion of the Opposition that the policy of the Government was erroneous, I maintain it was their duty, as I understand 237 the duty of public men, to have challenged that policy and to have asked the House to condemn, in substance and not in form, what the Government had done. But, my Lords, I also maintain that where, in the present state of Foreign affairs, arguments in the English Parliament on questions of form may easily be mistaken abroad for arguments on questions of substance, you ought, before you challenge on a question of form, to be quite clear that your form is right. I maintain there is no foundation whatever for the proposition which my noble and learned Friend has placed on the Paper to-night. I believe that, as to the substance of the case, Parliament will justify the policy of the Government; I am quite satisfied it is justified by the country at large. The question of form I leave to your Lordships' decision; without fear or apprehension I maintain that criticism on the form is entirely misplaced.
§ VISCOUNT CARDWELL
said, he certainly understood the noble and learned Lord who introduced the Motion to make a substantial charge against the Government, when he said that they violated the express terms of the Act of 1858 when they moved Indian troops out of India without the assent of Parliament, and without having made any provision out of the Imperial Revenue for meeting that expenditure. The Act of 1858 prohibited the application of the Revenues of India to the expenses of any military operation beyond the frontiers of India without the consent of both Houses of Parliament; and the argument of his noble and learned Friend was that the action of the Government in ordering the Indian troops beyond the frontiers of India without having obtained any authority from Parliament for the application either of European or of Indian money for the expenditure, was either a violation of that Act, or an infringement of the Constitutional principles of our own Government. But the noble and learned Lord on the Woolsack had discovered what he described in grandiloquent terms as a most serious, a most unprecedented breach of all Constitutional propriety on the part of the late Administration—of that Department of it for which he (Viscount Cardwell) was especially responsible. His noble and learned Friend imagined he had discovered that, although he (Viscount Cardwell) had obtained from the House of Commons, in 238 the regular manner, a Vote for 20,000 men, and a separate Vote for the money, on the outbreak of the Franco-German War, yet the consent of Parliament had never been given, inasmuch as no communication had been made to their Lordships—not even in the Appropriation Act.
THE LORD CHANCELLOR
said, that the Appropriation Bill sanctioned the Vote of Credit for £2,000,000, but it did not say that the money was for the purpose of raising 20,000 additional troops. The only reference to the purpose of the Vote was in the Schedule.
§ VISCOUNT CARDWELL
said, that the reference in the Schedule of the Appropriation Act was of the utmost importance, and since this charge was so serious and so specific, their Lordships would excuse him if he read to them the words of the Schedule from the volume of the Statutes, which he found in the Library of the House. The words he found were these—Towards defraying the expenses beyond the ordinary grants of Parliament which may be incurred in maintaining the Naval and Military Services of this Kingdom, including the cost of a further number of Land Forces of 20,000 men during the war in Europe.He had asked for the Votes in the House of Commons on the 1st of August, 1870, and the Bill, with their Lordships' consent, had received the Royal Assent upon the 10th. While he was vindicating himself in this matter, he might do so in another—the exercise of the Royal Prerogative in the abolition of Purchase—which he had been privately informed it was probable he might hear of in the course of the debate. Ho had been charged with having transgressed the law and Constitution when he advised the use of the Royal Prerogative in the case of the abolition of Purchase in the Army. But the facts were these. On going to the War Office at the end of 1868, he found that his Predecessor had obtained the sanction of Her-Majesty to the abolition of the rank of cornet and ensign in the Army, without making any provision for the cost of so doing; and, therefore, he (Viscount Cardwell) submitted to the House of Commons an Estimate for the money necessary to furnish the regulation price of the commissions. He could not offer more than the regulation price, traffic in commissions being forbidden by the Act of 1809. There was great alarm at 239 the proposal, as involving the whole principle of the over-regulation prices, and a great deal more than the regulation price was demanded. He therefore referred the whole subject to a Commission composed of very eminent men. The Commission reported in substance that the sale of commissions had obtained such general sanction that the prohibition could not rightly be enforced without full compensation; and that while regulation prices were permitted, it was impossible that the statutory prohibition of over-regulation prices should be obeyed. He then asked Parliament for money to indemnify the officers and abolish the whole system of Purchase. The House of Commons adopted his proposal; but their Lordships delayed the Bill. He was therefore obliged to recognize the continuance of the system which a most stringent Statute had prohibited and the other House had provided the means to abolish, or to resort to the exercise of the Royal power, so far as to put an end to the regulations permitting Purchase on the specified terms; but, in adopting the latter course, he had no notion of enlarging the Prerogative of the Crown, or of showing any disrespect to their Lordships' House. He was surprised to hear his noble and learned Friend on the Woolsack begin his speech by replying, not to the able speech by which the debate had been opened by his noble and learned Friend near him, but by replying to a speech which he supposed to have been made by a noble Marquess in the other House. The opening speech of his noble and learned Friend (Lord Selborne), to which he had listened with admiration, was described by the noble and learned Lord as "overloaded" and "irrelevant," and as dealing with matters that were either "misapprehended" or "perverted;" but no attempt had been made to justify that description. He thought, indeed, that he would have found it difficult to have replied to the speech of his noble and learned Friend, who did not question the policy of moving troops from India, but treated the mode by which the Government had done it as a question of Constitutional law of the first magnitude. He (Viscount Cardwell) thought it most desirable to keep the question of Constitutional law and right, which was one of the greatest magnitude and importance, entirely 240 separate from those of mere personal or Party interest. His noble and learned Friend, in keeping apart the great Constitutional question from all the small and unworthy interests which were capable of being associated with it, had performed one of the greatest services he could have rendered to the country. The question of Constitutional policy had been entirely lost sight of by the noble and learned Lord on the Woolsack. Reference had been made to what had taken place in 1775, and a large portion of the noble and learned Lord's observations were in answer to arguments that might have been used in 1775, but which had not been used at the present time. He hoped, after what had been said by his noble and learned Friend (Lord Selborne) on that subject, they would hear no more of it. With reference to the Report of the Committee of 1867, he thought the long list of precedents which had been read by the noble and learned Lord on the Woolsack contained scarcely one that happened while the Indian Army was under the Crown—his criticism, therefore, was entirely irrelevant. He agreed with the doctrine laid down by General Peel. What he understood was this, that the limitation of the number of men was necessary to the efficient control of Parliament; but that it was not sufficient to take merely a subsequent power of repaying the money. Every year both the men and the money must be voted. Vote A accordingly was the general Vote, and Vote B included the numbers of Indian troops; but these did not go into the Mutiny Act. Now, if these Indian troops had been voted under Vote B, and the Vote of Credit placed in the Appropriation Act, the old Constitutional practice would have been restored; but under the course pursued by the Government, the number of men would not have the sanction of Parliament at all. The question now was not a question of policy, but a question of whether the prior consent of Parliament was necessary or not. He understood that was not disputed by the Government. The noble and learned Lord on the Woolsack quoted the doctrine of emergency, and cited the authority of Mr. Gladstone, that the Government which did not take on itself the responsibility of acting in an emergency independent of Parliament, applying afterwards for indemnity from Parliament, would not be worthy 241 of the country. He quite agreed with that sentiment of Mr. Gladstone's. The Government admitted that they could not employ troops without the previous sanction of Parliament, if it were possible to obtain it, and that whenever they were compelled to employ them without the previous sanction of Parliament the solemn obligation lay on them to obtain that sanction at as early a moment as possible. After such an acknowledgment, he must say the object of his noble and learned Friend in initiating this discussion had been obtained.
LORD NAPIER AND ETTRICK
said, it was to be regretted that upon a question involving an important and interesting point of Constitutional law, two of the greatest legal authorities in that House should entertain diametrically opposite opinions. The discussion had taken the aspect of a mere intellectual contest, in which the two noble and learned Lords contended for the mastery in technical learning. If this question was to be raised at all, it should have been with some prospect of producing some deep and clear impression upon public opinion, and of exercising some salutary influence upon the policy of Her Majesty's Government. From the beginning, however, it had seemed to him, there was very little prospect of such a result being attained. The noble and learned Lord seemed to have overlooked that it was in the highest degree improbable that Her Majesty's Government would have taken such a step without having obtained from the highest authorities the assurance that it was in accordance with Constitutional law. Had it been otherwise, would not the noble and learned Lord on the Woolsack have employed all his legal knowledge and learning to prevent it? And was it not likely that the public would attach the greater weight to an opinion given with all the responsibility of official position? There was another consideration. They were all aware that, on several occasions, the authorities in India had sanctioned the employment of Indian troops in the Colonies of the Crown, and the legality of that course had never, so far as he was aware, been seriously questioned, either in England or India. Within his recollection, and within the period of his official employment in India, the Madras troops were regularly employed out of India, under the sanction of the Government of India, 242 with the assent of the Local Government, and, it must be assumed, of the Government at home. A Madras regiment was despatched to Hong Kong in 1867–8, and some Madras regiments had been stationed in the Straits Settlements for many years; and after the Settlement was transferred to the Colonial Office in 1867, one Madras regiment still continued to garrison it. He had not gathered from the discussion a single argument to show that the employment of Indian troops, being legal in the East, would be illegal in Europe. He thought it a most lamentable thing that at a time when the people of India were animated by the most loyal and devoted sentiments to the Crown—when the Indian troops were burning with a desire to consummate their reconciliation and union with their British fellow-subjects—and when the people of Malta were about to give a most kindly and confiding welcome to their strange guests and new defenders—a noble and learned Lord, adorned with every ornament of learning and eloquence, should have suggested to the Indian soldier that he might possibly commit, and to the Colonial subjects of Her Majesty that they might possibly suffer, an illegal act.
§ THE DUKE OF RUTLAND
said, that though he could not offer a single observation on the Constitutional and legal aspect of the question, he might be allowed to express his deep and unfeigned regret that their Lordships' House and the House of Commons should have received at the hands of the Government what seemed to be a very great slight. Her Majesty's Government, on the 27th of March, came to the conclusion that Indian troops were to be utilized; on the 28th of March, his noble Friend (the Earl of Derby) resigned; on the 12th of April, Her Majesty's Government telegraphed that transports should be sent to India to bring Indian troops to Malta; on the 16th of April, the Governor General announced the number of troops that would be sent; and on the 16th of April, also, Parliament was adjourned. Now, it seemed to him that if ever there was a question which, independent of its Constitutional aspect, ought to have been submitted to Parliament, this was that question. It was a totally new question. Indian troops had never before been sent from India to Malta. Not only was the question a new one, but it was raised in a time of 243 peace, and the step taken was a threatening of war. He wanted to know why Parliament was called together three weeks before the usual time—to the great inconvenience of the Members of their Lordships' House, as he knew, and to the great inconvenience of many Members of the other House—if it were to be kept in the dark upon this important matter? What was the reason?—what the object?—what the excuse? Why did not the Government, in the case of a great emergency—at a great crisis—resort to the advice and assistance of Parliament? He could answer that question, and if he was wrong, the Government would contradict him. It was because, if it had been known before the Recess that these troops were to be sent to Malta, the movement of troops might have been arrested, all the doubts pointed out, serious difficulties might have arisen, and the hands of the Government might have been impeded. Yes; but why was Parliament called together, except to discuss a question of this nature? The noble Viscount, who lately addressed the House, alluded to the Abolition of Purchase Bill. That Bill they were invited in the Queen's Speech of 1871 to consider. They did consider it for three nights, and at 2 o'clock of the morning of the third night, they decided to send it before a Royal Commission by a majority of 25. The next day their decision was overridden by Royal Proclamation. He was quite sure the noble Viscount meant no slight to their Lordships' House; but it added to his alarm at the encroachment, in the present case, of the Executive upon the functions of Parliament. He protested against this conduct of the Government, as an encroachment by the Executive upon the functions of Parliament.
said, that he could not be persuaded that the previous consent of Parliament was needed for the step which the Government had taken. He would apply to the present Members of it words used by an eminent diplomatist, in 1775, in a letter—There is an old French author, the Duc de Rohan, who writes about the principles of government, and says of that of England—'La constitution d' Angleterre est une grande bête quine saurait mourir si elle ne se tue pas ellemême,' Now, that is precisely what I could have said in six sheets of paper, and not more clearly. England will not be felo de se now. I trust in Providence, and in the manly principles 244 of those sound politicians who have a fair and just preponderance in the management of that Constitution.It had been said by a great authority—as was truly or falsely reported—that England was like a great whale, which could only fight on sea; and it was necessary, in the present emergency, that troops should be ready in case, unfortunately, "force" should be needed instead of "diplomacy."
§ EARL GRANVILLE
My Lords, before the debate closes, I must express my surprise that no one Member of the Government should have thought it necessary to say one word on the appeal made to them by the noble Duke behind them, who is one of the most consistent Conservatives in the House. The noble Duke, with great clearness, appealed to the Bench below him to give an explanation as to why it was that the proposed movement of troops had been kept secret from Parliament. So far as my experience goes, I do not remember an occasion on which Parliament has been treated so cavalierly as both Houses have been treated on the present occasion. It is perfectly true that on the day fixed for the Adjournment, I said I was quite sure Her Majesty's Government would inform the House whether it had any further information to communicate to Parliament on the subject of the Eastern Question; and we know that in "another place" a still more important Question was put; yet we know that not the slightest information was imparted on this most important subject. I do trust that the Government will condescend to give us some information on this particular point. We have to thank the noble and learned Lord on the Woolsack for the very interesting sermon or lecture he has given us this evening. He complained very much of my Friend the noble and learned Lord—who, on this great Constitutional point, has given us one of the most complete and exhaustive speeches I ever heard in this House—for the great length at which he had addressed your Lordships, and then the noble and learned Lord himself proceeded to speak at still greater length than my noble and learned Friend; but he did not touch upon some of the most important precedents and arguments which have been brought forward, and without attempting to answer some of his most cogent arguments. The noble 245 and learned Lord admonished my noble and learned Friend to be more accurate in his historical references—an admonition which I should think the noble and learned Lord was the last to require. The noble and learned Lord himself committed an error in the information he has given us respecting the Appropriation Act; but when he came to the debate of 1775, referred to by my noble and learned Friend, and whose reference to it he pooh-poohed, he certainly in what he said bears out my recollection of what was said by Lord Chancellor Bathurst, who, according to the noble and learned Lord on the Woolsack, was only talking paradoxically. He concluded in this manner—that the King had no right to maintain in any part of the Possessions of the British Crown any other than the troops agreed to by Parliament, both as to the number and also as to nations. The previous consent of Parliament is one of the most important points of Constitutional law, and I cannot conceive why Her Majesty's Government did not come to Parliament and state what they had decided upon. The whole character of the demonstrations made by the Government appear to me to have been of an ostentatious character. The bringing of these men to Malta is an act of that kind, and the secrecy with which the movement was shrouded seems to have been confined only to this country, and especially to Parliament, as it appears to have been known in India. If there had been any immediate probability of war, and that the Russian Government might have been able to prevent moving these troops to the spot, there might have been some excuse for this policy of secrecy; but nothing of the kind existed. It has been said that if the intention of the Government to bring these troops to Malta had been known in India, the rates of freight would have been enormously increased; but I have been told that if the wants of the Government had been known, the competition which would have ensued would have made the freights much cheaper. Therefore, I am still at a loss to know why the information was not given. And I must say that I utterly object to the way the noble and learned Lord has laid down as a fundamental Constitutional principle, that it does not signify what is kept from Parliament if the Government afterwards 246 explains the course it has taken, and obtains its sanction—a sanction which, in 99 cases out of 100, Parliament could not refuse. I do not deny that there may be cases in which a Government would be perfectly right to take a certain course without consulting Parliament, and in keeping it secret if it were necessary to do so; but no such necessity existed in this case. We are not in a state of war; and it would have been not only Constitutional but a wise and prudent thing for Government to take Parliament into its confidence, and in a Constitutional manner obtain its consent beforehand. The clause moved by the late Lord Derby in the Government of India Act, to prevent the Revenues of India being employed for the movement of troops outside the boundaries of India, was not intended to authorize the Revenues to be so employed, provided the Indian Exchequer was recouped. In fact, you break the law, when you make the Indian Revenue supply the means of moving troops on the chance of getting Parliament to repay the money. The noble and learned Lord on the Woolsack, instead of answering the precedents of my noble and learned Friend, gave us precedents of his own. My noble and learned Friend, at the opening of his speech, stated distinctly that his propositions and illustrations would be entirely separate from cases in which we were in a state of war, or when Parliament was not sitting; but nearly the whole of the precedents quoted by the noble and learned Lord were connected with a state of war, and referred not to the Imperial Army, but to that of the Company—which is a perfectly different thing. The noble and learned Lord, at the beginning of his speech, said the subject was a very fit one to bring before the House; but, at its conclusion, he made it a reproach against my noble and learned Friend, that he should bring forward what he described to be a mere question of form, instead of proposing a direct Vote of Censure. We are continually challenged to bring forward Votes of Censure, and to divide upon them. It is one of the advantages of this House that we can discuss questions without Motions of a character hostile to the Government; but these continual challenges remind me of the old quotation—"Fas est et ab hoste doceri;" and I think that the meaning 247 of the poet was not so much that we should follow the advice of our opponents, but copy their example. Noble Lords in this House and right hon. Gentlemen in the other House, when they were in Opposition, made perpetual attacks upon the Government; but they abstained, and very wisely abstained, from Motions or divisions, and I prefer now to follow their example than their advice in this matter. The noble and learned Lord on the Woolsack spoke somewhat disparagingly of forms, and there is an opinion prevalent in some quarters that these Constitutional checks are obsolete things; but I think it most unwise to allow unconstitutional precedents to be created without some sort of remonstrance against what might prove mischievous, or even disastrous, if evil days should come. Such checks ought not, in this House, to be treated as mere forms. I remember hearing the late Lord Derby say—We live not in times when Lords and Commons have to protect themselves against the arbitrary power of the Crown—those days have long passed, and the Prerogative of doing that which is beside and beyond the law is not now vested in the person of the Sovereign, but in the responsible Advisers of the Crown. It was their duty now to see, therefore, that the power should not only be legally exercised, but also that it should not be stretched to an unconstitutional extent.That I think sound and Constitutional doctrine, and much safer than that put forward by the noble and learned Lord on the Woolsack. I am glad this discussion has taken place. I hope that its result may be to make Her Majesty's Ministers more thoughtful in matters of this sort, and then the discussion of tonight will not have been without value and importance.
§ THE EARL OF BEACONSFIELD
My Lords, the noble Earl who has just spoken (Earl Granville) has rebuked us for not having answered a Question put by the noble Duke who sits behind me. The Question is one which everyone has been asking for a considerable time. If a Question which is frequently put is not answered, it may be taken that there is some good reason for silence on the part of those to whom the Question is addressed. I shall not take refuge in any technical reasons that I might give for the silence which has been complained of; but will say at once, that I do not think it would be for the advantage of the public service that the Question suggested 248 by the noble Duke and referred to by the noble Earl, should be answered. As to not making communications to Parliament, this House, I think, was not sitting when the resolution of the Government was arrived at, and the resolution of the Government, I think, was only arrived at four days before the other House adjourned for the Recess.
§ THE EARL OF BEACONSFIELD
However that may be, my answer to the noble Duke and the noble Earl is, that I did not think it was for the public advantage that that communication should be made. Unfortunately, we are obliged on this subject to speak with a seal upon our lips. I shall not enter upon the legal and technical discussion which has been raised this evening. If a debate had been commenced, in which the general policy of the Government was challenged, we should have been ready to enter upon the discussion with perfect fulness—in that case, we should have been quite prepared to vindicate the course we had adopted—though, possibly, we must have spoken under some disadvantage. We found, however, that the question to be raised was of a very different character, and that noble Lords opposite were to studiously avoid expressing any opinion of their own, or asking any from your Lordships' House upon the proceedings of Her Majesty's Government. I must decline, in these circumstances, to explain the conduct of Her Majesty's Government with respect to the movement of the Native Forces of Her Majesty from India to Malta. I shall be ready, my Lords, at the right time, and so also will my Colleagues be ready, and that without hesitation, to enter upon any discussion your Lordships' House may require on this matter; and I have sufficient confidence in the patriotism of this House to feel no doubt that the result of any such discussion will not be to the disadvantage of Her Majesty's Government. The noble Earl who has just addressed your Lordships (Earl Granville) has sketched the more important parts of the speeches delivered by the noble and learned Lord who introduced this discussion, and of my noble and learned Friend on the Woolsack. I myself listened to both those speeches with instruction, and certainly with pleasure. 249 At the same time, I have a right to form an opinion as to those speeches as well as the noble Earl, and I must say that the shield was on one side silver, and on the other golden; but it seems to me that our side was the more precious metal. It appeared to me that the noble and learned Lord who introduced the question (Lord Selborne) most ingeniously treated a variety of subjects which have for a long time now been under public discussion. I must, with all humility, observe, that there was nothing very novel in the noble and learned Lord's materials, nor was there anything eminently felicitous in his treatment of them. My noble and learned Friend on the Woolsack met the charge of the noble and learned Lord in a bold and complete manner, and demonstrated that the batteries which the noble and learned Lord had attempted to raise against the Government were powerless, and that for the attack he made there was really no foundation whatever. It appeared to me that the noble and learned Lord, in a most laboured manner, discovered—if I may use so unclassical a word in this Assembly—only a mare's nest. What were the only arguments used in a speech of two hours, and which was answered in a speech of equal length?—not longer, for I particularly watched the time of each—it showed a great knowledge of each other's powers that the orations should have balanced so exactly. Two arguments were urged by the noble and learned Lord, which I must say have been urged before, but urged to-night, of course, with the greatest ability of which they were susceptible. The first was this—You have no right whatever to move Her Majesty's Native Forces from India to Malta; the second was, you have not only no right to do that, but you have no right to call upon India to bear the expense of such movement. These were the two great points—one point for each hour. Now, my Lords, let us see how the matter stands. We entirely dispute the first proposition. The noble Earl who has just sat down says—"I object to your conduct, and I object to it on this broad ground, that you had no right to move those troops from India without the consent of Parliament." In fact, the noble Earl recommended to our consideration to-night that very unfortunate Amendment 250 of Mr. Gladstone's which has been referred to, and which, at the time it was submitted, he opposed with so much energy and dignity in this House. Well, the noble and learned Lord bases this first point upon the Mutiny Act. My Lords, we entirely dispute his interpretation. We maintain that there is no reference whatever to Native Indian troops in the Mutiny Act. The Mutiny Act does not refer to Native Indian troops, and, therefore, the charge against the Government is one which cannot hold. On the other hand, we say that we have a perfect right to advise Her Majesty to exercise Her undoubted Prerogative, and that, under that advice, She may command Her Native Indian Army to occupy Malta or any other place to which Her responsible Ministers advise Her that, owing to public necessity and for the public advantage, they should go. Well, my Lords, what is the next point of the noble and learned Lord. He says—"You have no right to fasten this expenditure upon the Revenues of India." Well, we are not going to fasten this expenditure upon the Revenues of India. The noble and learned Lord admits that, virtually speaking, we do not intend it; but, practically speaking, he says there is an expenditure immediately incurred in transactions of this kind, and it is to the Indian Treasury that you look—it is the Indian Treasury that you have already drawn upon and appealed to in order to carry on the expenditure, and you have no right to get out of the difficulty by saying that it is your intention to introduce a Supplementary Estimate into the other House of Parliament at the first convenient opportunity. I ask, in what way can we really comply with our engagements to this country and to the Indian Treasury, but in the manner which is now proposed to be followed by the Government? The noble and learned Lord, who has been a Minister of the Crown, must know very well that the accounts between England and India are of a very considerable character. They have this peculiarity, I believe—namely that the Debt of the Indian Treasury to the Treasury of England is generally very large, and thus far, if even for two or three months, the Supplementary Estimates were not carried in Parliament, still the Indian Treasury would be perfectly safe, because it would probably 251 owe that of England a much larger sum. The noble and learned Lord, in working his two points, dwelt very much upon one precedent—the Abyssinian Expedition—and, although he treated that precedent with dexterity, I do not think he did so with that ingenuousness which distinguishes his character. The noble and learned Lord showed by various documents—by researches which no one disputes—that there were considerable advances made at that time by the Indian Treasury, and says that those advances were illegal; but the noble and learned Lord chose to forget that at the time no one in the other House of Parliament, where, from its financial character, the question must have been brought forward, nor in this House, so far as my knowledge or recollection guides me, disputed the authority of the Crown to employ the Native Indian troops of Her Majesty on that Expedition. The question which was raised was of a financial character; but the noble and learned Lord avoided reminding your Lordships that the question as to the movement of the Indian troops beyond the boundaries of India was not in the course of those discussions for a moment referred to. That, my Lords, is my answer to the two great points of the speech of the noble and learned Lord. I maintain, and those who act with me maintain, that there is no allusion to the Native Indian Army in the Mutiny Act—that that Act refers to the European—the White troops—of Her Majesty, and not to the Native Indian Army. I cannot believe that anyone who has listened to my noble and learned Friend on the Woolsack can have a doubt that the opposite conclusion could not be successfully asserted. There, then, is an end of one of the great bases on which the question urged by the noble and learned Lord was founded. And, with regard to the other—namely, the illegality of the Indian Treasury bearing for the moment certain expenditure, I think your Lordships must feel that, under the circumstances, that was really trifling with the question. The noble and learned Lord could not have flattered himself that he was establishing the fact as against Her Majesty's Government that they did not intend that the expenditure should be repaid to the Indian Treasury. We have heard the noble and 252 learned Lord opposite, and my noble and learned Friend on the Woolsack indulge in a great gladiatorial duel. We have had the pleasure of witnessing that between two of our most eminent Members. I can only say we are perfectly satisfied with the discussion—except that we would have preferred either silence, or a fair outspoken issue. I do not think that discussions like the present at this moment are to the public advantage. If the noble and learned Lord who introduced this question (Lord Selborne) believed that we have acted contrary to the Constitution, he ought to act up to his tall phrases—he should have come forward and declared his belief that our action was unconstitutional, and that it was his duty to ask the opinion of Parliament upon it. The noble Earl who last spoke said they did not do that because they would not like being in a minority. But you will never be in a majority if your nerves are so delicate. You must assert your opinions without fear; and, if they are just, and true, and right, you will ultimately be supported by the country. But at this moment I do not think they are just, or true, or right; or, rather, I would say—although it has been said so often it may be repeated—that what is true is not new, and what is new is not true. That is my general view of the speech of the noble and learned Lord. It has given us an opportunity of hearing my noble and learned Friend on the Woolsack make a completely exhaustive discourse on this subject, and I hope to-morrow the moral and beneficial effects of this discussion will be felt not only in this House, but in the country. I must for a moment revert to what I can assure the House I would like to have passed—for I wish to regard matters of this kind with not too serious a feeling. I have expressed my regret that this discussion should have arisen at this particular moment. My lips are shut. I should like, of course—and all my Colleagues would, I am sure, like—if we could come forward and do that which we should be prepared and glad to do—to vindicate our policy and give our reasons, which I hope would be satisfactory to the country, for all the measures that we have recommended and introduced. We have been animated by one feeling throughout this business, which sustains and, I hope, inspires us at present, and that is to secure the 253 blessings of peace, and to maintain the freedom of Europe and the just position of this country. We are striving at this moment to attain those results. But it is impossible at this particular moment to meet discussions and attacks of this kind, and vindicate our conduct, without our having to make statements and enter into arguments and details which might be prejudicial to those great objects which not only ourselves, but I am sure equally the noble Lords opposite, must desire to accomplish and achieve. I would willingly take no part in the discussion to-night, but the noble Earl opposite challenged me to rise, and he is a knight to whom one owes every courtesy. Therefore it is that I make these few remarks in this discussion; and, in answer to the noble Duke who spoke behind me (the Duke of Rutland), he may urge the question again and again in this House, but until the time arrives when we can enter into a complete vindication of our policy, all I shall answer is—what we have done we have done with the belief that it was done for the public service; and, though you may condemn us, we will remain silent under the accusation, sooner than vindicate our conduct by injuring the public we are bound to serve.
§ House adjourned at half past Ten o'clock, till To-morrow, half past Ten o'clock.