force to be in the hands of the crown, the consent of the other branches of the legislature.* It is a direct infringement of the constitution, and a violation both of the Bill of Rights and of the Mutiny Act, for the government to raise more men for the land and sea forces than have been voted by Parliament. 'It is the practice of the War Office, however, to regard the number of men voted, not as a maximum number for any time during the year, but for an average upon the whole year; considering that if they made the average correct for the whole year, the vote of the House had been complied with. Upon occasions of great emergency the government have assumed the responsibility of increasing the army or navy beyond the numbers actually voted, and have afterwards applied to Parliament to make good the deficiency in the supplies granted for this service. In 1858, when the government of India was assumed by the British crown, clauses were inserted in the new India Bill to prevent the use of the Indian army out of India, except upon sudden emergency; and requiring that, whenever it should be so made use of, the expense thereof-unless 'both Houses of Parliament' should consent to the contrary-should be defrayed out of moneys to be voted by Parliament, and not out of the Indian revenues." On November 28, 1867, a resolution was submitted to the House of Commons, by the government, to authorise part of the revenues of India to be applied for the ordinary pay of troops chargeable on said revenues, but about to be employed in the expedition against Abyssinia. This resolution was agreed to, and was concurred in by the House of Lords on December 5. Discipline In lieu of the annual Mutiny Act, Parliament passed Army an Act in 1879 called the Army Discipline and Regula- and Regution Act, which embodied various customs and rules lations which had gradually been adopted. Further regulations Clode, Mil. Forces, v. 1, pp. 86, 104. Second Rpt. Courts Martial Comms. Com. Pap., 1868–9, v. 12. p. 408. 974. Sir G. Lewis, Hans. D. v. 165, p. m Ib. v. 164, pp.1481–1493. But see Smith, Parl. Rememb. 1860, p. 254, and 1862, p. 39. And Rpt. on Pub. Accts. 1862, Com. Pap. v. 11, Evid. 976, and Ib. 1864, and 8, Evid. 1009-1029. 21 & 22 Vict. c. 106, §. 55, 56, Hans. D. v. 151, pp. 1007, 1696, 2008. Ib. v. 172, p. 1291. 1b. v. 177, p. Hans. D. v. 190, p. 359. Act. Standing army. were afterwards made, and in 1881 another Act was passed in which these were consolidated, whilst the former statute was revised and re-enacted. The Regulation of the Forces Act and the Army Act of 1881 now include all previous laws and regulations on the subject. In 1882 these acts were amended by the Army (Annual) Act, by the Military Manoeuvres Act, and by the Reserve Forces Act, all passed in that year. An act to consolidate the law relating to the militia was also passed in 1882. It is worthy of remark that the declaration of the Bills of Rights, as to the illegality of maintaining a standing army without the consent of Parliament, is expressly confined to the time of peace.' Moreover, the Mutiny Act, in conferring extraordinary powers for the discipline of the army, is construed to imply that, except in time of peace,' the enforcement of martial law upon military men is not illegal. Accordingly, the royal prerogative, in respect to the embodiment and control of an army and generally for the defence of the realm in times of rebellion or foreign invasion in time of war, remains unimpaired by these constitutional restrictions, and is still the same as it was by the common law. What that law allowed is, however, no longer material to enquire, inasmuch as the monarchs of England, ever since the revolution, have been satisfied to rely upon the authority of the Mutiny Act for the enforcement of discipline in the army both in war and peace, and have been equally dependent at all times upon the necessity of obtaining from Parliament, year by year, the supplies required for the prosecution of any war in which Great Britain might be engaged. During the American war, the question was raised in Parliament whether it was legal to allow P Clode's Military Forces of the Sat. Rev. Oct. 25, 1862, pp. 505507. regiments to be levied and maintained by individuals, without the sanction of Parliament. The weight of authority was against the practice, though ministers inclined to justify it. The principal objection that was urged was a formidable one, namely, that it is of the very essence of Parliament to judge of the necessities of the state, and make provision accordingly; and that any measure to that end, without the previous concurrence of Parliament, tended to supersede its authority and strip it of its rights." It is, however, one of the ancient rights and liber- The ties' of Englishmen to have arms for their defence, militia. suitable to their condition, and as allowed by law '; and the fundamental laws of the kingdom have repeatedly affirmed the obligation of every Englishman to have a knowledge of the use of arms, in order that he may assist in preserving the public peace. Hence the militia has always been regarded as the constitutional force for the defence of the realm, and one of the earliest Acts of Parliament after the restoration of the monarchy in 1660 was for the settlement of the militia upon a constitutional basis. By the Militia Laws Consolidation Act, passed in 1786, it is declared that a respectable military force, under the command of officers possessing landed property within Great Britain, is essential to the constitution of this realm.'t corps. Upon a similar principle, the formation of Volunteer Volunteer rifle corps in Great Britain has taken place under the direct authority of Acts of Parliament, which permit the sovereign to accept offers of military service from the people, under certain conditions." The volunteer Parl. Hist., v. 19, p. 625. Campbell's Chanc. v. 5, p. 463. • Smith's Parl. Rememb. 1859, pp. 108-112. Corresp. Will. IV. with Earl Grey. v. 1, p. 416. : Clode, Mil. Forces, v. 1, c. 3 & 14. But this principle has been mo dified in practice by the Army Re- "Stats. 44 Geo. III. c. 54; 60 Church of England abroad. July 13, the new colonial secretary expressed his general agreement with the principle of this Bill, and intimated that the government would be prepared to submit a similar measure to Parliament in the ensuing session. 3. The position of the Church of England in Foreign Countries. Inasmuch as the whole collective legal powers of a bishop of the Church of England, as distinguished from his spiritual powers, are derived from the crown, in conjunction with Parliament, it follows that no such authority and jurisdiction can be granted out of the Queen's dominions, except as the result of a special arrangement with the governing power of a foreign country; and that the authority of Parliament must be invoked to enable the crown to dispense with the requirements indispensable to the ordinary appointment and consecration of bishops within the realm. Thus, in 1786, after the independence of the revolted American colonies had been established, an act was passed empowering the archbishop of Canterbury or York, with such other bishops as they shall think fit to assist, to consecrate citizens or subjects of foreign states to the episcopal office, according to the form of consecration in the Church of England. This act dispensed with the necessity for the royal license for the election, and of the royal mandate for the confirmation and consecration of such bishops; but it forbad any such consecration without the royal license having been first obtained for the performance of the same." Subsequently, in the year 1841, the provisions of this Act were extended so as to admit of bishops so appointed to exercise spiritual jurisdiction over the ministers of British congregations of the Church of England in foreign countries, as well as over such other Protestant congregations as may be desirous of placing themselves under 6 their authority." In 1862, the bishop of Oxford submitted a Bill to the House of Lords, to authorise the appointment and consecration of bishops for heathen and Mahomedan countries, with a view to the spread of the Gospel among the heathen, and to dispense with the necessity for any license from the crown, to enable the archbishops to proceed to consecrate such bishops. The Bill was opposed by the lord chancellor, as being an attempt to assail and remove the supremacy of the crown; and because it was necessary, in order to maintain the constitution of the country in Church and State, that no act should be done by which dignity is conferred, except under special authority emanating from the sovereign, as the source of all authority, temporal and spiritual.' Moreover, there was no necessity for the Bill, as the power and authority required had been already given by the Acts of 26 Geo. III. and 5 Vict. aforesaid; and there was no difficulty in obtaining the license of the crown to proceed under those statutes. The Bill was accordingly withdrawn.* In 1861, the bishops of the Anglican Church in New Zealand, after communication on the subject with the secretary of state for the colonies, and the attorneygeneral for New Zealand, consecrated a missionarybishop for the islands of the Western Pacific, without letters patent, or any mandate from the crown, a precedent which has since been followed, without objection." 4. The obligations of the Act of Uniformity. Unifor By the Act 14 Car. II. cap. 4, commonly called the Act of Act of Uniformity, the use of the Book of Common mity.. Prayer thereunto annexed is made binding upon the clergy of the Church of England; and they are ex The Jerusalem Bishopric Act, 5 Vict. c. 6, and see the form of license from the crown in Stephen's Eccl. Stat., v. 2, p. 2150, n. ' Hans. D. v. 168, pp. 223, 234. |