The dependence of the army upon the crown, absolutely and without any qualification, is essential to the safety of the monarchy, and has ever been regarded as the undisputed right of the occupant of the English throne. Nevertheless, at the revolution of 1688, such limitations were imposed upon this prerogative as have rendered it impossible that it should be exercised to the detriment of English liberty. It was declared by the Bill of Rights that the raising or keeping a standing army within the kingdom in the time of peace, unless it be with consent of Parliament, is against law.'• 6 Parliamentary consent to the continued existence of a standing army is given only for the period of one year at a time, by a formal resolution of the House of Commons fixing the number of men of which the army shall consist. This resolution is embodied in the preamble of the annual Mutiny Act, which recites the aforesaid provision of the Bill of Rights, and enacts that whereas it is adjudged necessary by her Majesty and this present Parliament that a body of forces should be continued for the safety of the United Kingdom, the defence of the possessions of her Majesty's crown, [and the preservation of the balance of power in Europe'-the said force shall consist of such a number of men. Having declared the assent of Parliament to the existence of an army, to be composed of a limited number of soldiers, the Act proceeds to provide for the discipline of the force by authorising military offenders to be punished according to military law, instead of by the slow and complex process of the civil courts. In time of war the crown has absolute power to legislate for the government of the army, though, as d See Cox, Inst. Eng. Govt. 594. e Clode, Mil. Forc. v. 1, c. 5. The words between bracketswhich were first inserted in 1727, and continued thenceforth until 1868have been since omitted. Hans. D. v. 191, pp. 326, 557. See charge of Ch. Just. Cockburn, in the Queen v. Nelson and Brand, pp. 69, 87-91. In time of war, the crown acts out of the limits of its dominions as regards the Army, by virtue of its prerogative. Barwis, v. Keppel, 2 Wilson, p. 314. were afterwards made, at1 in 1881 another Act was passed in wil these were consolidated, whilst the former statute was revised an re-enacted. The Regulation of the Faroes Act and the Army Act of 1881 Low include all previous laws and regulations on the subject. In 1552 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 Parliainent, 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 Upon a similar principle, the formation of Volunteer Volunteer rifle corps in Great Britain has taken place under the corps. direct authority of Acts of Parliament, which permit the sovereign to accept offers of military service from the people, under certain conditions." The volunteer r 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 Act, and of the Articles of War-not only when embodied and out for training, but at other times.* Such being the well-ascertained rights of the crown in regard to the levy, direction, and maintenance of a military force for the protection and defence of the empire, it remains to consider how far the Houses of Parliament are constitutionally competent to interfere therein. and control of and navy. We have already seen that the control of the army Responsibility of and navy was the last of the prerogatives to be surren- ministers dered into the custody of responsible ministers. Even for the of late years there have been those who have con- the army tended that the administration of the military naval forces of the kingdom should remain altogether in the hands of the executive; without any interference with the same, by either House of Parliament." But sound doctrine forbids a distinction to be drawn between the exercise of the royal authority over the army and navy, and over other branches of the public service; upon all alike it is equally competent for either House of Parliament to tender its advice, and there can be nothing done in any department of state for which some minister of the crown is not accountable to Parliament. Were an exception to be allowed in the case of the army and navy, it would necessarily follow that the responsibility for their management would fall upon the sovereign directly; but this would be contrary to the constitutional maxim which declares that the king can do no wrong, and is not personally amenable to any earthly tribunal whatsoever. It has also been suggested that the commander-in-chief, and not the advisers of the crown, should be held singly responsible for all acts of military administration. But, as Lord * Hans, D. v. 232, pp, 1401, 2019, v. 233. p. 817; Act, 26 & 27, Vict. c. 65, §. 21. 40 Vict. c. 7, §. 2. ▾ Ante, p. 121. ▪ Hans. D. v. 75, p. 1289. Clode, Mil. For. v. 1, p. 84. See ante, p. 263. |