tions. tion the position of certain army colonels who had been promoted Preceto that rank for distinguished services during the Crimean war, dents. but whose case had been overlooked in the framing of some new Regimenregulations in respect to regimental promotions, whereby their tal promoprospects in the service had been materially injured.' This motion was agreed to without a division, the government having admitted that the claims of these officers had been unintentionally overlooked, and consented to appoint an official departmental committee to consider the same.m This committee reported against the claims of these officers, and the government confirmed their decision. The question was still pressed upon the attention of government by questions and motions in the House of Commons," and on April 28, 1863, a motion for an address to the crown to issue a royal commission for the further investigation of the matter was proposed. Lord Palmerston deprecated the interference of the House with the detailed management of the army, because that is no part of the constitutional functions of the House of Commons, and was calculated to lead to very objectionable results;' but he promised, if the motion were withdrawn, that a commission should be issued. Mr. Disraeli defended the motion as strictly regular, and as being no infringement of the constitutional practice, entirely recognised, that it is not the business of Parliament to interfere with the government of the army,' inasmuch as the proposed proceeding was by an address to the crown. The motion, however, was withdrawn, in faith of the promise made by the premier. But in 1869 and 1870, the attention of the House of Commons was called, by a private member, to certain hardships inflicted on colonels of the British army in consequence of their supersession by colonels of the Indian army, and on June 29, 1870, ministers consented to the appointment of a select committee to enquire into the matter.P masters. On May 15, 1863, a motion for papers relating to the condition Quarterof regimental quartermasters, though to a certain extent connected with the discipline of the army,' was admitted to be very proper for the consideration of the House of Commons, involving as it did essentially a financial question.' On June 21, 1864, an address was agreed to by the House of Commons (with the consent of the government) for an enquiry into the condition, pay, and allowances, of regimental quartermasters. On March 3, 1864, a resolution was proposed in the House of Yeomanry Commons to declare that the discontinuance of the assembling of cavalry. the yeomanry cavalry for the customary training, during the present year, was inexpedient, and would be detrimental to the efficiency of m Hans. D. v. 163, pp. 938-944. n Ib. v. 169, pp. 262, 1947. ° ib. v. 170, pp. 873-876. VOL. I. p Ib. v. 197, p. 1888; v. 202, p. 1168. a Ib. v. 170, p. 1779. NN Precedents. Indian army officers. the force. The assistant secretary for war declared that the government had been obliged to take this step, in order to reduce the army estimates; but that they did not consider it would have the effect of materially diminishing the efficiency of the force. Upon division, the motion was negatived by a majority of one." But the government, having been enabled to effect an unexpected saving upon the estimate for the cost of prosecuting the war in New Zealand, afterwards submitted to the House a vote for the training of the yeomanry, which was agreed to by a large majority. On May 2, 1865, a member called the attention of the House of Commons to petitions from certain officers of the late East India Company's army, complaining of a breach of faith on the part of the government, in the reduction of that force, and its amalgamation. with the army of the Queen. The case of these officers had been already discussed in Parliament; upon a motion for a committee of enquiry, the government had agreed to appoint a royal commission, who had reported upon the alleged grievances. The government had undertaken to redress such grievances as might be substantiated before the commissioners. Nevertheless, it appeared that the result of their decision upon the several matters of complaint was regarded by many as being partial and inadequate. Accordingly, an address to the crown-praying for the redress of all the grievances admitted to exist by the commissioners, which had arisen by a departure from the assurances contained in certain Acts of Parliament-was proposed and carried (against ministers); the secretary of state for India contending that, as a whole, the condition of the officers of the Indian army had been considerably benefited by the action of government. On May 9, an answer was received to the aforesaid address, stating that directions should be given for further enquiry into this matter, in order that 'ample redress' should be afforded wherever it might appear to be necessary. On May 15, the case of the officers of the late Indian army was fully debated in the House of Lords, upon the presentation of a petition from an officer in a Bombay regiment. It was then stated by the secretary of state for war that, in deference to the opinion of the House of Commons, it was the intention of the government to appoint a new commission to investigate whether the grievances pointed out by the first commission had, or had not, been removed.t On June 29, the House of Commons was informed that the new commission had been appointed, and had commenced their labours." Their report, dated September 14, 1865, was laid before Parliament in the following session. On August 6, Hans. D. v. 173, pp. 1376-1388. * Ib. v. 175, p. 45. On the same Ib. v. 179, p. 286. informed of the intention to appoint 1866, Lord Cranborne, the secretary of state for India, informed Precethe House of the conclusions arrived at by the new Derby adminis dents. tration, for the remedy of the grievances under which the officers of the local army of India had so long laboured. These conclusions were afterwards embodied in two despatches from the secretary of state to the government of India, dated August 8, 1866. But on June 28, 1870, the House of Commons again addressed the crown in respect to these grievances, and at the same time a committee was appointed by the House to consider counter-complaints of hardships urged on behalf of colonels of the British army, owing to their supersession by Indian army colonels. This committee reported in July." On February 8, 1875, another select committee was appointed by the House of Commons on this subject, which reported on March 23.* in China. On March 20, 1866, with the consent of the government, a select Mortality committee was appointed by the House of Commons to enquire of troops into the mortality of the troops in China, the causes which led to it, and into the conduct of those departments of the government whose duty it has been to administer to the wants of those troops.' This was no party question, but arose out of certain unfortunate occurrences, in regard to which the under-secretary for war stated that the government, whilst they were willing to take the responsibility upon themselves, considered it more advisable that the subject should be investigated by a committee. This committee reported, on July 24, the evidence they had taken on this subject, together with their opinion upon the facts before them. The main conclusion at which they arrived was to the effect that, during the summer of 1865, the troops stationed in China were overcrowded in barracks, and had very defective hospital accommodations, which occasioned much sickness and loss of life. They acquitted the War Department of blame in regard to these unfortunate occurrences, but recorded their belief that fuller instructions explanatory of the views of the imperial authorities respecting the needful arrangements for the proper care of the troops, 'so far from limiting the discretion of the general officer in command, would have enlightened and strengthened him in its exercise.' z On February 14, 1867, explanations were given to the House of Commons of the circumstances attending a certain naval promotion, whilst the reasons for the same were withheld, lest it might create misunderstanding.' a Dissatisfied with these explanations, a member moved, on March 21, that 'the promotion by the first lord of the 'a ▾ Com. Pap. 1866, v. 52, p. 157. Hans. D. v. 202, p. 1147; v. 210, Com. Pap. 1870, v. 5, p. p. 969. 739. * Com. Pap. 1875, v. 10, p. 247. Precedents. Martial law. Admiralty of a junior lieutenant in the navy, without any special or distinguished service, over the heads of hundreds of meritorious lieutenants senior to him in the service, is prejudicial to the public interest.' Ministers opposed the motion on the ground that, while as a general rule promotions were 'by selection, based on seniority,' discretion had been usually exercised by first lords, in particular cases, which was not inconsistent with the interests of the naval service.' Several such cases having been referred to in the debate, the motion was withdrawn until the House should be in possession of further information on the subject. The subject was not again resumed. On July 16, 1868, a select committee was appointed by the House of Commons to enquire into certain allegations of complaint against the royal gun factories. On July 6, 1877, ministers successfully resisted an attempt to refer to a select committee the question of the best mode of constructing war vessels, on the ground that it would be an undue interference with the responsibility of the Admiralty in such matters.d Since the publication of the first edition of this volume the popular and hitherto generally accepted definition of martial law has been brought to the test of judicial determination, and has been utterly repudiated and disallowed. Sir Alexander Cockburn, lord chief justice of the Court of Queen's Bench, in his charge to the grand jury at the Central Criminal Court in the case of Regina v. Nelson and Brand, establishes the important fact that martial law, as popularly understood, is unknown to the law of England. This charge, though not law, defines what in the opinion of the learned judge is the state of the law. The crown itself, he asserts, has no prerogative to proclaim a state of martial law, which shall place the civil courts in abeyance, and subject all persons within the district immediately concerned to the jurisdiction of the military power. The army is governed by a military law, applicable Hans. D. v. 186, pp. 293-311. Return presented, Com. Pap. 1867, v. 44, p. 559. • Hans. D. v. 193, pp. 1254-1261. a Ib. v. 235, p. 909. • Published and edited by Mr. F. Cockburn, London, 1867. only to soldiers, but which is definite, precise, and legal, having been framed by experienced military authorities, and ratified by the sanction of Parliament.* Martial law is a very different thing. It is the assumption of arbitrary power over all persons in any district wherein martial law has been proclaimed, for the purpose of quelling an armed insurrection against the constituted authorities. And it is conclusively shown, in this luminous and elaborate charge, that the crown, in its constitutional capacity, has no inherent prerogative to proclaim martial law, as applicable to the inhabitants of the country generally, or to any particular district thereof, under any circumstances or conditions whatsoever, and that martial law cannot be enforced within the realm of England except by authority of Parliament. In case of riot or insurrection the magistrates are authorised, by the Riot Act, to call in the aid of the military power to act in aid of and under the civil power, for the suppression of the same. The legality of the employment of troops, under the authority of the civil magistrate, and upon the responsibility of the secretary of state for the Home Department, has been sometimes impugned, as being equivalent to the introduction of martial law and military government. But this doctrine has found no favour with the best constitutional authorities, and it is quite inapplicable to an army which, like that of Great Britain, owes its very existence to Parliament, and is directly subordinated to the control of the civil power. It has been held, moreover, that, in cases of emergency, the executive government may issue a proclamation empowering the military authorities to act for the suppression of riots, without waiting for directions from a civil magistrate. The extent to which it is allowable to employ volunteers for suppression of riots is regulated by circulars from the War Office. These circulars were at first See ante, p. 521. Parl. Hist. v. 9, p. 1294. Queen's Regs. and Orders for Army, ed. 1883, p. 222. Prendergast, Law of Army, p. 13. Finlason, Martial Law, pp. v. 26. May, Const. Hist. v. 2, p. 127. Forsyth, Const. Law, p. 214. The whole question is discussed, and the authorities reviewed in Clode's Mil. Forc. v. 2, ch. 17, and Stephen's Hist. Crim. Law, v. 1, pp. 207-216; see also Hans. D. v. 212, pp. 3, 285. |