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Sir Leslie Scott, confronted with the declaratory words of the Act of Charles II., sought to confine them to Forces by sea and land existing at the time of the passing of that Act. He argued that in effect there were at that time no Forces by sea and land other than the Militia itself. It is true that an Act of the previous year (12, Charles II., chapter 15) had provided for the speedy disbanding of the Army, but it appears that this disbanding had not been completed at the time when the Act 13, Charles II., chapter 6, was passed, for there are several later Statutes of the Reign of Charles II, deal- ing with the remnants of the then Army. (See Clode Milit- ary Forces of the Crown, Appendix 1). But, in any
event, whether there were or were not at that time any Forces by sea or land on which the Statute could operate, other than the Militia, it is clear from the language of the Statute, which is a declaration of the existing preroga- tive, that the prerogative of command of the Forces by sea or land has always been vested in the Crown, that it would equally apply in the absence of express statutory provision to any Forces thereafter lawfully to be raised.
The language of the Statute which I next consider is the first Mutiny Act, 1. William & Mary, chapter 5. That Act, which contained provision for punishing officers and soldiers who should mutiny or desert their Majesties' ser- vice, was to continue until November 1689, and it is significant that that Act contains no provision for amend- ing or repealing the Act of Charles II. which had declared the prerogative.
In 1689 was passed the Act generally known as the Bill of Rights, 1. William & Mary, Session 2, chapter 2, which recites that the late King James II. "did endeavour to subvert and extirpate the Protestant religion, and the laws and liberty of this Kingdom by raising and keeping a standing army within this Kingdom in time of peace with- out consent of Parliament", and declares, among other matters, that the raising or keeping of a standing army within the Kingdom in time of peace, unless it be with con- sent of Parliament, is against law. This was by Chapter 2. By Chapter 4 of the same Session was enacted the second Mutiny Act. The position, therefore, in 1689 was this: A standing army was illegal without the consent of Parlia- ment, but once Parliament had given its consent, the standing army became legal; there is no indication in the Statutes that the prerogative of the King with regard to the government or command of such a legalised standing army was in any way impaired.
It is not necessary, in my opinion, to consider in detail the subsequent Acts which continued annually to legalise the Army. The earlier Acts did not specify the number of troops to be raised. This was not done until the Mutiny Act of 1714, and in 1715 power was given to the Crown to draw up articles of war for the discipline of troops in the United Kingdom. But such articles of war which continue to have statutory authority (see the Army Act 1881, Section 69) are to be distinguished from the King's Regulations which, with certain exceptions, continue to have force apart from the authority of Statute. Articles of war are said by Section 69 of the Army Act 1881 to be for the better government of officers and soldiers, and statutory power is given by Section 71 of the same Act to make regulations as to persons to be in- vested as officers. These regulations now appear among the King's Regulations, but the remainder of the Regu- lations have no statutory authority but are made by virtue of the prerogative.
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