Sitting of 16 December 1854

THE OLD PATRIOTIC FUND—ENLIST MENT OF FOREIGNERS BILL.
THE DUKE OF GRAFTONhaving given notice that it was his intention to move, on Tuesday next, for a return of any sums of money which remained in hand from the Patriotic Fund established during the last war, and also for a return of the sums collected and received for the Patriotic Fund during the present war, and paid to the Commissioners appointed by Her Majesty, setting forth the places whence the subscriptions had come, and the names of the persons who had contributed.
THE EARL OF ELLENBOROUGHbegged to suggest to the noble Duke that the Patriotic Fund established during the last war was a private fund, over which their Lordships' House could have no control whatever, and so no return could be ordered. In fact, the House had no official cognizance of it.
THE DUKE OF GRAFTONthought the noble Earl might be right in his observation respecting the old fund; but the House had certainly a control over the Patriotic Fund for the present war.
THE DUKE OF NEWCASTLEsaid, it was undoubtedly true that the old Patriotic Fund was a private fund, over which Parliament had no control. With respect to the present Patriotic Fund, there might be no objection to part of the return asked for; but there were lists published weekly giving an account of all the sums collected and received, and the names of the contributors, and the return which the noble Duke indicated would only be a repetition of the sums and names which appeared in these weekly lists. With respect to the Patriotic Fund of the former war, the balance remaining vested in private trustees. That fund, unlike the present, was not collected under the authority of a Royal Commission; amid was not under the control of Commissioners? but if the noble Duke liked, he (the Duke of Newcastle)

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would undertake to make a communication to the trustees of that Fund, and would perhaps be able to ascertain the amount in hand. But of course he could not answer for the result of his application.
TEE DUKE OF GRAFTONsaid, that under these circumstances, he would withdraw his notice altogether.

ENLISTMENT OF FOREIGNERS BILL.
Order of the Day for receiving the Report of the Amendments read.
Moved, That the said Report be now received.
THE EARL OF ELLENBOROUGHsaid, he really thought he was entitled to complain that any stage of so important a Bill as this—a Bill, too, which had been strenuously opposed on all previous stages—should have been fixed for a Saturday, when it was out of the question to expect any attendance of Peers beyond the noble Earl (the Earl of Aberdeen) and his colleagues, who came to support their own measure. At all events, he had come down himself to discharge what he felt to be a duty—to continue that opposition to the Bill which he had hitherto offered on its previous stages. He would not, on the present occasion, add any arguments to those he had previously endeavoured to lay before their Lordships; but he had now had an opportunity of reading over the Bill, as amended by the noble Duke, and would address a few observations upon it in its present shape. There were one or two points in the amended Bill to which he wished to call the attention of the House, but especially of the noble and learned Lord on the woolsack. It bad been stated in the course of the former debates—and that statement bad not been impugned—that the Crown had in its prerogative the right to enlist foreigners to serve in our armies abroad. By the Bill, as it originally stood, it was made lawful for the Crown to enlist foreigners, but no doubt the intention was that the power of the Crown should be extended by being permitted to raise foreigners to serve not only abroad, but in this country. By the Bill, as amended, the last provision was omitted altogether, and therefore, as the Bill now stood, it gave the Crown a Parliamentary authority to do that which it had been stated the Crown, by its prerogative, already possessed the right to do. He apprehended that a Parliamentary sanction of the Royal prerogative would practically, to a great extent, impair the pre-
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rogative itself. He was not disposed to question either the prerogative of the Crown to enlist foreigners, or to impair its present or future exercise, but, on the contrary, he conceived it might be used upon many occasions with great advantage, as in an instance which had been referred to already—the enlistment of the Sultan's subjects in our service. Upon that subject he would take another opportunity of entering. He now appealed to the noble and learned Lord on the woolsack whether, in point of fact, when Parliamentary sanction was given to the Crown, and it was made lawful by Act of Parliament for the Crown to do that which the Crown claimed the right to do by its prerogative, that prerogative was not practically impaired; and whether, on any future occasion, the Crown could exercise its prerogative without the authority of Parliament, after one instance of Parliamentary sanction being given? As to the other amendments introduced by the noble Duke, he must say that they did not in the slightest degree tend to mitigate his objection to the Bill. The noble Duke had offered, in the course of the debate, to reduce the number of foreign troops to be employed in this country from 15,000 to 10,000. That, however, had not been done, and the number remained, as at first, 15,000 men. Indeed, there was no practical limitation of the power originally granted by the terms in which the Amendment was conceived. Under the amended Bill, foreigners were to be permitted to remain in this country to be trained, arrayed, and formed into battalions, troops, and regiments; but they might also be retained here as a body of reserve, to supply vacancies occurring in corps serving abroad. There was no distinct and fixed proportion between the reserve and a main army in the field, and there was nothing in the Bill, as it now stood, to prevent the Crown, if employing 20,000 or 30,000 foreigners abroad, from retaining some 12,000 or 13,000 more in this country as a reserve. That proportion would not be more than was reasonable, as in Her Majesty's regiments serving abroad the reserve at home was usually one-third of the total number. With respect to the presence of those foreigners in this country, all the objections which he had originally stated applied still with undiminished force. Wherever those troops were stationed, if they were near any place where disturbance occurred, they, in the absence of British troops, might be called upon to preserve the public

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peace; the magistrates would be compelled, in the discharge of their duty, to call in the aid of these German soldiers. There was no general understanding—no expression of any intention on the part of the Government—to do anything to prevent that exercise of magisterial authority, or to interfere with the proper obedience of military authorities to the law. The Bill, therefore, still remained liable to all the objections he had made on the second reading; and, moreover, it had acquired in its progress the further objection, to his mind, that it impaired, very materially, a most valuable prerogative of the Crown.
THE LORD CHANCELLORthought that, whatever might be the merits or demerits of the Bill on other grounds, he could satisfy the noble Earl that it in no respect tended to impair the prerogative of the Crown. What was the prerogative? It was to employ abroad all foreigners who chose to servo Her Majesty, and whom She had the means of employing. How did this Bill impair that power? All that the Bill did was to enable Her Majesty to enlist foreigners, and to form them into battalions in this country for service abroad. It was idle to read the Bill by taking two or three lines, and then to stop short and declare that it impaired the Royal prerogative because it gave it the Parliamentary sanction. The Bill must be read altogether, and, so reading it, he (the Lord Chancellor) said, the Bill gave the Sovereign the right to enlist foreigners as She might enlist natural-born subjects, keeping and training them in this country, subject to the qualification that those foreign troops should be employed in this country only for the purposes of training, and as a reserve to feed the corps employed on foreign service. He could not imagine that it was possible for any one who read the Bill to say that it at all tended to impair the prerogative of the Crown. It only enabled Her Majesty to do something which She could not do without the sanction Of Parliament, and it might be also that it included something which the Crown could do without the sanction of Parliament:—but reading the Bill as a whole, it was clearly hypercritical to say that the Royal prerogative was at all impaired by it, and for some time he had found it difficult to comprehend the objection of the noble Earl. His noble Friend, he supposed, referred to the first clause, which gave authority to Her Majesty to
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enlist persons not natural-born subjects. Certainly, under restrictions, that could be done now, but not as this Bill permitted—to be brought into this country and here trained.
THE EARL OP ELLENBOROUGHsaid, that in the first clause the Crown was permitted to enlist foreigners and to keep them in this country, but the second provision was no longer in the Bill. The first clause, as he understood it, made it lawful for the Crown to do that which it could do before, and therefore he was of opinion that it impaired the prerogative, as hereafter it would be inferred that the Crown could not do that particular act without the sanction of Parliament. In the second clause Parliament said, that in conferring the right to enlist foreigners, it was only on condition that a certain number should be brought into this country. It therefore limited the power of the Crown.
THE DURE OF ARGYLLsaid, that if the argument of the noble Earl was good for anything, it would apply equally to the Acts of 1794 and 1804, which must equally have impaired the prerogative of the Crown. ["No!"] He ventured to appeal to his noble and learned Friend on the woolsack whether it was not fair to contend that, if the Acts of 1804 and 1806 involved exactly the same provisions as the Bill now before the House, the argument of the noble Earl fell to the ground? The truth was, as far as he (the Duke of Argyll) could understand the matter, that the preamble and the first clause of the Act of 1804 went almost further than this Bill towards impairing the prerogative of the Crown, if they were spelt out as the noble Earl was disposed to spell out the provisions now under their Lordships' consideration. The Act of 1804 recited that the Crown had already enlisted a certain number of foreigners—of course in virtue of the Royal prerogative —but it went on to say that Parliament recognised such enlistment, and enacted that the men so enlisted should be held to be legally engaged in the service of the Crown. If the noble Earl would read the preamble and the first clause of the Act of 1804, he would see that the same construction might be put upon them which he (the Earl of Ellenborough) had put upon the present Bill. As the noble and learned Lord (the Lord Chancellor) had said, however, they must take this measure as a whole, and not spell out particular clauses or portions of clauses.
THE EARL OF ELLENBOROUGHsaid, his impression was, that in 1804 the Crown might have enlisted foreigners, though not lawfully, in this country, and that the object of the Act passed in that year was to render legal the enlistment of foreigners in this country as well as abroad.
LORD REDESDALEread the preamble of the Act of 1804, which stated the object of the Act to be, to permit certain foreigners then in Great Britain to enlist in the Royal service. It appeared, therefore, that such enlistment was illegal, before the passing of that Act of Parliament.
THE LORD CHANCELLORthought it was quite clear that the first clause gave to the Crown a power which it did not possess by prerogative, because it enabled the Sovereign to enlist foreigners in the same manner as if they were natural-born subjects. The Sovereign might enlist natural-born subjects in this country, and the clause empowered the Sovereign to enlist foreigners in the same manner. The truth was, the whole of the Bill should be read and construed together, and it was as plain as possible that its object was simply to give authority to the Crown to enlist foreigners for certain purposes, but for those purposes only, and to keep them embodied in this country.
THE DUKE OF GRAFTON,although he did not approve of the Bill, suggested that foreigners enlisted under its provisions might be employed in the Colonies, but he objected to their employment in this country.
THE DUKE OF NEWCASTLEsaid, the noble Duke might not be aware that he had on a previous occasion expressly stated to the House, on the part of Her Majesty's Government, that it was not intended to employ the troops to be raised under the authority of the present Bill in this country at all. He had stated that power was sought to admit foreign troops into this country, not for the purpose of employing them here, but solely in order to embody and train them with a view to rendering their services available in the Crimea. With respect to the employment of foreign troops in the Colonies, he should object to take any power to employ them there—and the Colonies did not want them. All that the present Bill purported to do was, to enable the Crown to raise foreign troops, to bring them into this country to receive a training, and to keep them as a reserve to be sent as required to the seat of war.
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He wished to say one word with regard to the observations which had fallen from the noble Earl opposite. The noble Earl had found fault with him for having brought on the Motion for the reception of the report on that day; but he (the Duke of Newcastle) believed it would be convenient to noble Lords on both sides of the House that the debates upon this measure should not be protracted so as to delay the passing of the measure over the period of Christmas. He had acted last night, as he conceived, in consonance with the feelings of all parties, when he gave notice in the presence of a large number of Peers of his intention to bring up the report on the Bill to-day. He could not conceive, therefore, that upon that ground the noble Earl had any cause of complaint. The noble Earl had remarked, that he (the Duke of Newcastle) had offered to substitute the numbers 10,000 for 15,000 in this Bill, and that he had not done so. Most unquestionably he had made such an offer, but no intimation was given to him that the proposal met the views of noble Lords opposite. The noble Earl, instead of accepting the offer with his usual grace of manner, found reasons for objecting to the employment of 10,000 foreign troops, as he did to the employment of 15,000. The noble Earl brought his military knowledge to bear upon the subject, and pointed out the proportion which a reserve ought to bear to the troops employed upon active service. As he had stated, the object of this Bill was merely to provide for the training of soldiers, and therefore the question of the proportion which a reserve ought to bear to a main army on service was wholly irrelevant, and it was still his (the Duke of Newcastle's) intention to make the alteration. He (the Duke of Newcastle) had yesterday put into the hands of the Chairman of Committee an Amendment substituting the numbers 10,000 for 15,000, and he was not aware, until he saw the Bill to-day, that that Amendment had not been made. He was, however, ready now to reduce the numbers mentioned in the Bill from 15,000 to 10,000.
THE EARL OF ELLENBOROUGHobserved, that the noble Duke and the House must recollect that the law was what was declared by Act of Parliament, and that the noble Duke's explanation of the intentions of the Government was no part of the law or of the Act of Parliament. If everything that had fallen from the noble Duke

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and from Her Majesty's Ministers upon this subject were bodily inserted in the Bill, then, no doubt, to a certain degree, the objections to the measure might be removed. That, however, was not the ease, and, constitutionally speaking, they were bound to look to the law as it was declared by Acts of Parliament.
THE DUKE OF NEWCASTLEhad no doubt the noble Earl's legal acquirements were almost as great as his military knowledge; but he could only say that, in reading the words of the Bill as a matter of common English, they appeared to him to carry out as completely as any words could do the views and intentions of the Government. He had already stated that it was not the desire or intention of Her Majesty's Government to employ the troops to be raised under the Bill in this realm, and the Bill provided that the troops to be embodied under its provisions should not be employed in the United Kingdom, except for the purpose of being trained and formed into battalions, corps, and regiments for foreign service.
THE EARL OF ELLENBOROUGHsaid, the Bill went on to except "such bodies of reserve as might be kept in the United Kingdom for training and arraying recruits," which might be merely a body of subalterns and non-commissioned officers; but it also excepted the men who might be required "for supplying vacancies in such regiments, battalions, and corps." Now, this might include a reserve equal to one-third of the whole force embodied under the Bill.
THE DUKE OF NEWCASTLE: It is unimportant what proportion they may bear; they cannot be employed in this country for any purpose except that specified.
THE EARL OF ELLENBOROUGHremarked, that so long as they were in this realm, no matter for what purpose, they were here as troops. If they were here as a reserve to 24,000 men in the Mediterranean, and were gradually sent out to keep that corps up to its complement, what did it signify? What he objected to was the presence in this country of 12,000 or 15,000 foreign troops.
Resolved in the Affirmative: Amendments reported accordingly.
An Amendment (that 10,000 be substituted for 15,000) made; Bill to be read 3a on Monday next.
House adjourned to Monday next.