that it is not the business of Parliament to interfere with the govern- Precedents ment 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 The motion, however, was withdrawn, in faith of the promise made by the Premier.c masters.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.'d 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 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.e 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.f Officers. On May 2, 1865, a member called the attention of the House of Indian Commons to petitions from certain officers of the late East India Army 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 Ilans. Deb. vol. clxx. pp. 873-876. a Ibid. p. 1779. e Ibid. vol. clxxiii. pp. 1376–1388. Precedents 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.§ On June 29, the House of Commons was informed that the new commission had been appointed, and had commenced their labours.b Their report, dated September 14, 1865, was laid before Parliament in the following session. On August 6, 1866, Lord Cranbourne, the Secretary of State for India, informed the House of the conclusions arrived at by the new Derby administration, 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.i Mortality of troops in China. On March 20, 1866, with the consent of the government, a select committee was appointed by the House of Commons to enquire 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 Hans. Deb. vol. clxxix. P. 286. p. 297. h Ibid. vol. clxxx. p. 926. iCommons Papers, 1866, No. 530. J Hans. Deb. vol. clxxxii. P. 647. discretion of the general officer in command, would have enlightened Precedents and strengthened him in its exercise.' k Law. The military law, as exercised under the authority of Martial Parliament, and by virtue of the annual Mutiny Act, together with the Articles of War, is not to be confounded with that other branch of the royal prerogative which invokes the exercise of martial law under certain peculiar circumstances. In the emergency of invasion and insurrection or rebellion, when the ordinary authorities, in any part of the realm, are unable to quell disturbances, and enforce the operation of law by means of the customary legal tribunals, the crown is entitled, by virtue of its ancient prerogative, to proclaim martial law. This power being invoked either by the Sovereign or her representative, in any particular district, colony, or place, within the realm, the ordinary laws of the land are therein suspended for a time. It is the undoubted prerogative of the crown to declare a state of war, and our common law of treason, of which one of the overt acts is levying war against the crown, acknowledges that there may be a state of war between subjects and their Sovereign; as, for example, wherever there is an armed insurrection or rebellion, against which the constituted authorities of the country with such aid as can be afforded by the military power, acting in aid of and under the civil power1 are unable to cope. Under such circumstances, the crown k Report, p. xii. Commons Papers, 1866, No. 442. 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 Martial Law. Ministers responsi same. may proclaim martial or military law, until the rebellion is suppressed, and the ordinary power of the law can be peaceably enforced. When once martial law has been proclaimed, either by the Sovereign or her representative, an entirely absolute discretion is vested in the military authorities in regard to their proceedings for the restoration of peace and good order. For martial law is a lex non scripta, and ‘is built upon no settled principles, but is entirely arbitrary in its discretion. It ought not therefore to be permitted in time of peace, when the king's courts are open for all persons to secure justice according to the law of the land.' Nevertheless, even in time of peace, martial law may be proclaimed and exercised whenever the ordinary legal authorities are unable to maintain the public peace, and suppress violence and outrage; and it may be continued in force until the disturbances are effectually quelled, and peace and safety restored.TM But ministers of the crown, through whose instruble for the mentality resort should be had under any circumstances to martial law, are responsible to Parliament for their conduct, and must be able to justify the necessity for their acts under penalty of censure, removal from office, or impeachment, if it should prove upon investigation that their proceedings had been uncalled for or unwarrantably severe." Jamaica case. In 1865, a royal commission was appointed to enquire into the circumstances under which martial law was proclaimed by Governor Eyre upon the breaking out of an insurrection in the island of Jamaica. In consequence of the report of this commission, Governor Eyre, who had previously been suspended, was removed from office, on account of his having sanctioned an excessive and unjustifiable severity in the suppression of the insurrection; although, at the same time, praise was awarded to him for the skill, promptitude, and vigour, he had manifested during its early stages; to the exercise of which qualities its speedy termination was, in a great degree, to be attributed. This report was laid before Parliament; and its conclusions met with general approval.o We have next to consider the prerogative of mercy, Prerogawhich is a peculiar attribute of royalty, and is vested, by tive of statute, in the Sovereign of England. All criminal offences are either against the queen's peace or against her crown and dignity. She is, therefore, the proper person to prosecute for all public offences and breaches of the peace. Hence her prerogative of pardon, for it is reasonable that that person only who is injured should have the power of forgiving. But this, like every other prerogative of the British crown, is held in trust for the welfare of the people, and is exercised only upon the advice of responsible ministers. It is, moreover, subject to the control of Parliament, which has more than once interfered by statute to limit and restrain the effects of a royal pardon. q mercy. offences. The exercise of the prerogative of pardon is strictly Is confined confined to criminal offences, wherein the crown is a to criminal prosecutor, and does not extend to cases of private wrong. Hence Parliament has no right to address the crown for the release of a prisoner confined in gaol on a civil suit, or for contempt of court, as it is beyond the power of the crown to discharge such a person. Any such application by Parliament would be invoking the exercise of an unconstitutional and arbitrary power, in violation of law and order. Undue severity in cases of this description, if not capable of being redressed by the ordinary legal tribunals, can only be remedied. by a special Act of Parliament.* |