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 corps. Volunteer movement, which has since assumed such important dimensions, originated in the spring of 1859, when General Peel, the then secretary for war, issued two circulars, the first of which declared the readiness of government to accept the service of volunteer corps, offered under the old Volunteer Act of the 44 George III., and the other set forth the circumstances under which the government was prepared to accept the same. Military law. In 1862, a royal commission was appointed to enquire into the condition of the volunteer force, and to report whether any measures were necessary in order to ensure its stability, and increase its efficiency as an auxiliary arm of national defence. In reporting various recommendations for this purpose, the commissioners lay down the constitutional rule, that if it be desirable that any positive limit should be placed upon the total number of the force, the duty and responsibility of deciding that question must rest exclusively with the responsible advisers of the crown.' In conformity with this principle, the secretary of state for war shortly afterwards issued a circular forbidding the enrolment of additional volunteer corps. Though in 1873, an Act was passed to provide for the establishment of a Royal Naval Artillery Volunteer Force, 36 & 37 Vict., c. 77. Military law is a branch of the law of the land applicable only to certain acts of a particular class of persons, and administered by special tribunals. It is based upon rules for the government of the army and navy which have been framed or sanctioned by successive Acts of Parliament. Courts-martial for the trial of military offences are, therefore, a part of the recognised judicatures of the realm, whose jurisdiction is confined to the military and naval forces of the crown." The Mutiny Act passed in 1877, provided, for the first time-pursuant to the recommendations of a War Office committee in November 1876, on the Militia Acts that officers of the militia, yeomanry and volunteer corps, should be subjected to the operation of that 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 bility of control of and navy. We have already seen that the control of the army Responsiand 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 Commander of the forces. Grey pertinently remarks, this would not materially lessen the inconvenience. The holder of that office would stand in a most unsafe position, if he could not depend upon the support of the ministers of the crown in case of his measures being questioned in Parliament; and they cannot be expected to give this support unless the officer who trusts to it communicates with them in the performance of his duties, in such a manner as to enable them to guard against his taking, or omitting to take, any step for which they will not be prepared to defend him.' The mismanagement of our forces during the early part of the war with Russia in 1854-5, evinced the necessity for a more direct and undivided responsibility than had previously been recognised in the conduct of interests of such importance to the security of the empire. On the other hand, the advantages accruing from constitutional oversight on the part of the House of Commons, into the manner in which the military departments were organised and controlled, were demonstrated by the vigorous if not altogether successful attempts for the reform of the army administration which resulted from the investigations of Parliament into the conduct of the Crimean war. The complete responsibility of ministers for the control of the military force having been established beyond dispute, it follows that they must be held accountable to Parliament for their proceedings in this as in other matters. But as the command of the army and navy is the peculiar privilege and strength of the executive power, and cannot be surrendered to Parliament without a virtual overthrow of the monarchy, it is essential that the scrutiny of Parliament into military Hans. D. v. p. 69. See and Ld. Palmerston. Grey, Parl. Govt. 8–10, n. debate in the II. of C. on military organisation, on June 1, 1858; and observations of Mr. Sidney Herbert d affairs should be cautiously and sparingly exercised, lest the constitutional limits of enquiry and counsel should be overstepped, and the functions of executive authority be encroached upon. The constitutional security against an abuse of this prerogative is found in the general responsibility of ministers, and the necessity for the sanction of Parliament to the continued existence Parlia mentary of the army and navy, by the annual appropriations for contr the support of these services, and the annual renewal of over this the Mutiny Acts. Parliament has an unquestioned right to interfere, by enquiry, remonstrance, and censure, in all cases of abuse, whether on the part of individual military officers or of executive departments. It has a right to enquire into the causes and consequences of any disasters that may befall our arms in the prosecution of contests against the Queen's enemies. Select committees to enquire into the miscarriages of the war in Ireland were appointed by both Houses of Parliament in 1689, and the Commons addressed the king for the trial of Colonel Lundy for alleged treason on this occasion." Similar enquiries were instituted by the two Houses of Parliament during the American revolutionary wars and the subsequent naval and military operations in Europe.h It may call ministers to account for placing any officers upon half pay, otherwise than as a reward for past services, and a retainer for future services, if required. It has a right to discuss and advise upon all general questions affecting the well-being of the army and navy, their internal economy or efficiency; preroga tive. |