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It was by no mere oversight that the preamble to 13 Charles II., chapter 6, has remained unrepealed, as in 1863 the whole of the rest of the Act was re- pealed, but the declaration as to the King's right to the government, command and disposition of the Forces by sea and land was expressly left standing. It is to be noted that Parliament has never purported expressly to confer upon the Crown any powers of dis- posing or using the Army or administering its affairs. When Parliament has given its consent to the raising and keeping of the Army for the year, it leaves the Crown to exercise its prerogative powers as to the manner in which the Army is to be raised and kept and in respect to the disposition and use of the Army and the administration of its affairs. The manner in which these powers are exercised is constitutionally subject, like the exercise of other prerogatives, to the advice of the Ministers of the Crown, of whom the one particu- larly responsible for the Army was, until recently, the Secretary of State for War. By Letters Patent dated February 6th, 1904, all the prerogative powers of the Crown in relation to the Army, which had theretofore been exercised by the Secretary of State, the Commander- in-Chief and other officials, were vested in the Army Council, to whom further powers were transferred by the Annual Army Act, 1909, but the Secretary of State for War remains responsible to the Crown and Parliament for all the business transacted by the Council. It is un- necessary to specify the various powers relating to the Army which Parliament has thus tacitly left to the un- fettered control of the Crown, it is sufficient to state that they undoubtedly include the organisation, armament, maintenance, disposition and uses of the standing Army in time of peace.
In my opinion, therefore, the powers which the Crown exercises as to the disposition and use of the standing Army in time of peace are powers vested in the Crown by prerogative right at common law and are not powers con- ferred upon the Crown by statute.
However, the question whether the Crown was acting under its prerogative powers or under powers conferred upon it by statute, when acceding to the request of the Plaintiff Company to provide guards for its ships, is, in my opinion, not really the material question to be de- cided in this case. The extent of the powers exercisable by the Crown in relation to the Army is, in my opinion, the same whether they are technically prerogative powers or statutory powers. If, contrary to my opinion, they are statutory powers, Parliament has not limited them in any way save by the enactments already referred to and, except as so limited, their scope must be measured by the powers which were vested in the Crown by prerogative right at the time of Charles II.
This brings me to the crucial question in the pre- sent case, whether the powers of disposition and use of the Royal Forces vested in the Crown include a power to hire out troops to a British Company at its request for the protection of its property and the lives of its em- ployees. Admittedly the powers retained by or vested in the Crown, in relation to the Army, are wide and undefined, and unless the Plaintiffs can establish that these powers do not include a power to lend troops to a private in- dividual for the protection of himself and his property
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