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Employment of Indian Troops in Europe. 385
obtain from Parliament leave for the Crown to make any alteration whatever in the Royal Title by mere act of prerogative, under the delusive colour that the precedent of the change in the Royal Title at the time of the union with Ireland—when the form of the new Title could not have admitted of a doubt—was at all applicable, was another instance of the symptoms, characterising the scheme of policy now under consideration, of a disposition to exclude Parliament from concert or concurrence in acts of a grave constitutional nature.
The movement of the Indian troops to Malta is, however, admitted, even by those who justify it, to have been a matter of very doubtful constitutional right. It is a cardinal principle, first formally embodied in the Bill of Rights, and afterwards recited annually in the Mutiny Act, that 'the raising or keeping a standing 'army within the kingdom in time of peace, unless it 'be with consent of Parliament, is against law.' The Mutiny Act gives Her Majesty power to embody and maintain an army for the current year, and assigns the exact numerical size of that army. The complaint of the movement of the Indian troops to Malta, so far as it rested on constitutional grounds, was that, inasmuch as the Crown was not restricted in the number of native Indian forces it might embody, the practice of importing these native troops into Europe might avail to render wholly abortive the restrictions on the forces in the employment of the Crown, as contained in the Bill of Rights and the Mutiny Act. Ingenious defences of the constitutional position assumed by the Government were made by its legal supporters. It was said that, since the passing of the Bill of Rights, 'the 'Kingdom' had come to include Ireland, and therefore a strict interpretation of the clause in question would prevent the Government from sending troops to that country. It was also said that it is an inherent prerogative of the Crown to move ' all forces by sea and 'land' to and from any part of the British dominions; that, by a series of Acts for the government of India, including the Act of 1858 'for the better government 'of India,' Her Majesty was entitled to move any of her Indian forces ' beyond the external frontiers of Her 'Majesty's Indian possessions'; but that, except for preventing or repelling actual invasion, or under other sudden or urgent necessity, the revenues of India could not, without the consent of both Houses of Parliament, be charged with the expense. It is admitted, however, that Indian troops could not be brought within the limits of the United Kingdom. Whether all this reasoning was good or bad from a strictly legal point of view,—that is, as affecting to be a judicial interpretation of certain Acts of Parliament,—there is no doubt that the acceptance of it must wholly defeat the policy enforced by the Bill of Rights, and reasserted year by year in the Mutiny Act. This policy was, to prevent the Executive being able to lay its hand, in any event which it might please to call an emergency or a case of necessity, upon an indefinite number of troops, without having recourse to Parliament. The liberty of the people, and the confinement of the functions of the Executive within well-ascertained limits, were the objects in view. It may have been that the rule was occasionally transgressed by hard-driven Governments at moments when Parliament could not be consulted; but such vagaries were never erected into principles; Treaties and Declarations of War. 387
and the terms of the Mutiny Act, so far as it affected to fix the number of allowable troops, would become a mere fictitious deference to appearances, if it were conceded that the Crown could, by an exercise of its prerogative, compete when it pleased, on a European battle-ground, with the vast standing armies of the Continent, by the simple device of enlisting troops in India and moving them to Europe.
No subject has been more eagerly discussed of late than that of the province of Parliament in respect of the making of Treaties and the declaration of War. No prerogative of the Crown is more undisputed than that of taking the initiative in all negotiations with foreign Governments, conducting them throughout, and finally completing them by the signature and ratification of a Treaty. But a Treaty may involve a large expenditure of the national funds, possibly stretching over a period of many years, or obligations of a most onerous and responsible kind, in the performance of which the whole country has the keenest and most direct interest. Thus, while saving the dignity and claims of the Royal Prerogative, Ministers are generally not averse to making Parliament share, from a very early moment in the course of the negotiations, in the responsibility attaching to the final settlement in which they may result. Parliament also, through its control of expenditure and other effective checks, can do much to prevent undue secresy and to arrest diplomatic action in which it has no part. Nevertheless, emergencies may arise, especially in reference to the issues of an imminent war or a possible peace, in which the tardy and uncertain course of referring to Parliament might render negotiations impossible, or precipitate the issue in a way by no means conducive to the national interests. In view of these emergencies, and of these only, the Boyal Prerogative of concluding treaties and declaring war may be justified in reason, and by the existing Constitution is justified in fact. But to use this Prerogative, not in order to provide for unforeseen crises, but to carry into effect a deliberately planned foreign policy, extending over many months and having a long series of closely connected links, without encountering the criticism or opposition of Parliament, is to strain the Prerogative to a use which, if frequently indulged in, must render it first deservedly unpopular, and then wholly out of harmony with constitutional government. It is a bare fact that during the progress of the British diplomatic movements which terminated in the Treaty of Berlin of 1878, or more properly in the Afghan war of that year, Parliament never had an opportunity of expressing its mind on any one of the important and complicated engagements to winch the country was being committed, or upon the policy of the war on the North-West frontier of India. The subjects were indeed over and over again discussed in Parliament, but always subsequent to irreparable action having been taken by the Government. The Convention which included the transfer to England of the administration of Cyprus, and the undertaking to guarantee in certain cases the immunity of the Turkish Asiatic possessions, reached to a number of indefinite and serious obbgations which were made binding on the country for an indefinite period of time to come. The position taken up at the Berlin Congress, and the wholly new startingpoint of policy in reference to the North-West frontier of India, were not the product of sudden emergencies for
Parliamentary Control of Finance. 389
which the Government was bound to provide before it had a chance of ascertaining the mind of Parliament, but were necessary steps in a uniform and integral policy which might have been communicated to Parliament months beforehand, and yet was sedulously, and on some occasions, it must be said, unscrupulously, veiled from it. Tims the constitutional conduct of the Government in this case must not be measured with reference to the habitual practice of submitting all important treaties to the judgment of the Houses before signature or ratification, because in the large majority of cases the Government has little to gain from privacy, and much to gain from casting a large share of its responsibility on Parliament. The conduct of the Government in such a case must rather be judged by reference to the question whether they have abused the prerogative by converting that right of secret diplomacy, which only exists and ought to be cherished on behalf of grave national crises when the last interests of the nation are at stake, into a means, fortunately happening to be at their disposal, for evading the legitimate scrutiny of Parliament in respect of matters in which the country has the profoundest interest, and for the right conduct of which the House of Commons is responsible to its constituents, and both Houses of Parliament to the country at large and to posterity.
(2.) The importance of checking the exercise of the Prerogative of the Crown in respect of financial affairs is not at present in much danger of being overlooked, though it may be doubted whether on the whole the check is as yet adequately applied. A financial policy is so closely connected with every other