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an earlier age as to whether the Sovereign had some power which could not be superseded, regulated, or abolished by Act of Parliament. Professor Dicey treats the preroga- tive as "the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power be in fact exercised by the King himself or his Ministers. Every Act which the executive government can lawfully do without the authority of the Act of Parliament is done by virtue of the prerogative". Now it is clear
that there is a wide margin of executive acts done by the King or his Ministers in relation to the administration of the Army, which the Courts of law will not interfere with or control. The Statute Law Revision Act of 1863 (26 & 27 Victoria, chapter 125) left unrepealed that part of the preamble of the Act of 1660, which recited that "within all His Majesty's Realms and Dominions the sole supreme government, command and disposition of the Militia and all Forces by sea and land and of all forts and places of strength is and by the laws of England ever was the undoubted right of His Majesty and his Royal pre- decessors, Kings and Queens of England, and that both or either of the Houses of Parliament cannot or ought not to pretend to the same" Lord Haldane, in Halsbury's Laws of England, cited this preamble as the authority for his statement that "the government of the Forces is vested in the Crown who has power to make regulations as to command and administration". As Lord Kenyon said in Macdonald v. Steele (Peake, page 175), where an officer was asking the Paymaster-General for his half-pay, "His Majesty's pleasure supersedes all enquiry, as he has the absolute direction and command of the Army". The Courts have repeatedly re- fused to intervene in questions of pay and service, though the Royal Warrants appear to entitle the claimant to what he asks the Court to give him. This is so, whether the claimant asks relief from the King or from the executive Officer. Colonel Mitchell, in 1891, 2 Queen's Bench, page 326, demanding half-pay under a Warrant, failed against the Secretary of State for War on the ground that there was no obligation on the Secretary except to the Crown, and that "there was no obligation on the Crown to make this allowance recognised by law". He also failed on Petition of Right against the Crown. Lord Esher said: "An officer cannot, as between himself and the Crown, take proceedings in the Courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The Courts of law have nothing to do with such a matter". This is because the administration of the Army is in the hands of the King, who unless expressly controlled by an Act of Parliament cannot be controlled in the Courts. Similarly, decisions are found in Gidley v. Lord Palmerston (3, B. & B., page 275); re Tufnell (Law Reports, 3 Chancery Division, page 176); Dunn v. The Queen (1896, 1 Queen's Bench, page 116), where it was held that a servant of the Crown, though expressly engaged for a fixed term of years, could be dismissed without notice at the pleasure of the Crown; Kinloch v. Secretary of State for India (7 Appeal Cases, page 619), and Grant v. Secre- tary of State for India (1877, 2 C.P.D.).
The constitutional aspect of the financial side of the question was more fully explored in this Court than it had been below. The Court was anxious to ascertain exactly in what kind of cases the Crown received money for the sale or use of Crown materials, or the services of members of the National Forces, and under what author- ity and how the sums so received were dealt with in the National Accounts.
4.