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the last war, and the bright lustre the Bri- | no unforeseen or extraordinary accident tish arms had acquired by it: that it were happening; if there was not a fault some well for their reputation, if the world could where, in the plan, the execution, or lose the recollection of the glorious suc- both. That this fault could be found cesses that crowned the enterprises of out only, by an enquiry into the instrucGreat Britain during that period; to the tions given to general Burgoyne; that end that the contrast of the present dis- therefore as he hoped the gentlemen in graces might not strike the nation so administration had given no advice or instrongly, and render the contrivers of structions, which could not bear the test the measures which occasioned them, the of parliamentary enquiry, as he flattered execration of the people. The views of himself
, that the motion he was about to the ministry in holding out in such pom- make would not meet their opposition. pous colours the proffered aid of several in- It were needless to have a parliament, if dividuals, were specious andimposing; they it could not call for information, and wished to impress the people at large punish delinquents. He then moved, with the idea, that their measures were is That an humble Address be presented perfectly constitutional, or they would not to his Majesty, that he will be graciously have met with such general support from pleased to give directions, that there be the nation. For his part, he could not be laid before this House, copies of all in: deceived in that particular, as he knew the structions and other papers, relative to the offers of support came from men of such a expedition from Canada, under lieut. gedescription, as would be no credit to ad- neral Burgoyne; and also copies of such ministration. Scotland and Manchester parts of the instructions given to general very readily concurred to strengthen the sir William Howe, as relate to any inhaods of ministers, who were pursuing tended co-operation with lieut. general measures so conformable to their own sen- Burgoyne." timents, and to maintain a government so
Col. Luttrell attacked Mr. Fox for the exactly similar to that of their darling king, general national censure he had thrown James 2, a government which was pur- out against Scotland, and accused him of suing the steps that lost that prince his having declared in his own presence, that crown. [Here some gentlemen called he would speak treason, when and where him to order, as they conceived that he he pleased. But this accusation relative was drawing a parallel between the pre- to a private conversation drew a general sent King's reign and that of king James; murmur of disapprobation from the House. Mr. Fox, however, qualified what he had Lord North said, that if the hon. gen. said, and went on.] He added, that tleman had not spoke treason, he had gone Scotland and Manchester were so accus- very near it. King James had been detomed to disgrace, that it was no wonder throned for endeavouring to subvert the if they pocketed instances of dishonour, laws, overturn the constitution, and reign and sat down contented with infamy; but without a parliament. The present King, as he knew Britain in general possessed on the contrary, was contending to estaother sentiments, and would not continue blish the power of parliament, and enforce in the delusion which had brought dis- the laws of the country. It was the duty grace upon her arms, annihilated one army, of parliament to enquire into the conduct and dishonoured another, but would in- of ministers; to turn out such as had acted vestigate the cause of our misfortunes to wrong; and to keep out such as would the fountain-head, from whence the cala- wish to act wrong. When the names of mities of the war and of this campaign the subscribers should be made public, it in particular had originated. By this would then appear that there were men means they might be able to discover who had been always sincerely attached to the men who had done all this, and who the Brunswick family; and that though it had brought disgrace upon their country had been otherwise, it would be ungenerous as far as lay in their power ; although and impolitic to impute the faults of the at the same time he owned no ministers parent to the children. As well might had it much in their power to degrade himself and the hon. member be called this country, since a change of men Tories, as the ancestors of both had been wiped off the disgrace. To this end, he of that description of men. As to the said, he renewed a motion which he had proposed enquiry, he had not the least obmade before the recess. He said, it was jection to it; he only found fault with the impossible, that 10,000 men could be lost, time of moving for it in the absence of lord G. Germain. He would therefore will render any support my abilities can recommend it to the hon. member to sus- give it useless and unnecessary. It is sufpend his motion till Tuesday next. ficient for me, that I feel myself actuated
Mr. Fox rose to explain the imputation by an honest zeal (for honest I will call it) of meaning something treasonable by his for the salvation of my country, in these allusion to the government of king James. times of the most dangerous experiments; This he would maintain, that whosoever it is to your lordships' better understandattempted to act contrary to the constitu- ings, that I must submit. On this ground tion, could be no friend to it; that an at- then, my lords, and because I hold it to tempt to tax three million of people, with be the privilege of every noble lord to call out their own consent, was unconstitution- for the advice of the judges in point of law, al; and that as king James had been de- I shall presume to move, “ That a day be posed for exercising power not his own, so fixed for summoning the Judges to attend this country had been deposed from its this House, in order to take their opinions natural dominion over America for usurp- upon the present mode of raising Troops, ing a power denied by the constitution. without the authority of parliament.” As for the motion, he would not have it The Lord Chancellor objected on seve. thought that he wanted to take any advan- ral grounds, to the informality of the motage of the noble lord's absence, and was tion. He said, no instance was recorded willing to withdraw his motion for that in parliament of any such motion being evening, and make it on Tuesday.
received. That the judges had no voice
in that House, nor were ever present in Debate in the Lords on the Earl of debate; nor at any other time, in the Abingdon's Motion respecting the Legality manner now attempted, unless specially of raising Troops by private Aids without called upon. That when they were called Consent of Parliament.] Jan. 23. The upon, it was to decide upon matters of Earl of Abingdon said : Having a motion mere law, and upon questions previously of very great importance to make, I think framed; which questions were supposed it necessary to apprize your lordships of it. to arise from facis already proved to the I am greatly alarmed at the spirit that is satisfaction of the House. Was that the gone abroad, and at the countenance given case now? Was there any fact whatever to that spirit, of raising, out of the medium stated to the House, on which a question of parliament, armies in Great Britain, by of law could arise? Not one, nor one personal interest and private subscriptions. even suggested. On this ground of inforIt is therefore my intention, in the course mality, he contended that the motion was of a few days, to move, that a day be ap- highly improper; nor could it be enterpointed for summoning the Judges to at- tained for an instant conformably to the tend this House, in order that their Opi- established usage of parliament. His lordnions may be taken
this matter. At ship then said the annual Act passed every present, I conceive it to be not only re- session, called the Mutiny Act, became pugnant to the principles of the constitu- necessary; because in time of peace, no tion, but expressly against the letter of the standing army could be kept up within the law. Perhaps I'am mistaken; if I am, kingdom, without the consent of parliament. and this mode of arming the nation be The last Act empowered his Majesty to right, I too will exert my interest for the raise 20,000 men. In that view of the purpose of raising a regiment; not, my question, if it should come out in proof, lords, to go to America, to be hazarded, which was a fact within his own knowledge, perhaps devoted, but to remain in England that including the levies made during the to assist in protecting our liberties. If I recess, the whole of the troops within the am not mistaken, I shall trust that these kingdom did not amount to 20,000 men; violent measures will be immediately sup- then the measure, to which the motion was pressed. He then moved that their lord- directed, was perfectly justifiable; for the ships be summoned on the 27th instant; Mutiny Act liad been literally and rigidly which was agreed to.
complied with. Besides, though the mat
ter had not been just as he stated it, the Jan. 27. The Earl of Abingdon. Being House could not properly take cognizance now assembled, in consequence of the notice of the affair. He understood, a noble lord I gave your lordships of my intention to in the other House who presided over the make a motion to this House, I think, that war department, had already delivered in the high importance of the motion itself, estimates of troops proposed to be raised; therefore, though the number should ex. sultation, and advice, was an act little ceed 20,000 men, the embedying and re. short of superseding its authority, and gimenting of them would not take place stripping it of its rights. till the measure had received a parliamen- The Earl of Effinghan disapproved of tarysanction. If recruiting parties had withdrawing the motion; said he would been out, or men had been proposed to be be better pleased to meet the negative diraised, it was usual every day; prepara- rectly, than have the question, after full tions in the recruiting service were neces- notice given, postponed. If administrasary, because it was not the very instant tion meant to oppose it, they, it might be men were wanted for actual service that presumed, would not change their intenthey were recruited. He concluded with tions, in the space of a few days. His saying, that the Bill of Rights declared, lordship being reminded, that the motion that to keep a standing army within the was already withdrawn, insisted neverthekingdom, in time of peace, was contrary | less, as a peer of parliament, on his right to law; but the present not being a time to give his sentiments upon every quesof
peace, that provision did not apply. tion introduced into that llouse. He wished the noble earl would withdraw The Duke of Richmond declared, that his motion.
the judges were the attendants of the Lord Camden said, the motion well de- House, and entered into an investigation served their lordships' most serious atten- of the different import of the word • attion, as it was, in point of constitutional tendance, distinguished from the word effect, of a most serious and important assistance, as used in the Journals of the nature. He begged leave to lay in his House ; deducing from thence, an arguclaim thus early, to be understood that ment, that the judges, to whom the word the question did not lie within the very ' attendance' was always applied, in strict narrow limits which had been assigned to compliance with their duty, should give it by the noble lord on the woolsack. It daily attendance; but on account of their seemed to him most materially to affect other important avocations, that attend. the privileges of parliament. He had not ance was excused, and they were never yet digested his thoughts on the subject, / expected to be present, unless specially but from its naked appearance and the summoned. His grace contended, that a arguments which came in support of it motion for the attendance of the judges, from the woolsack, the consequence of by any noble lord in his place, was a mothose arguments would lead, in his opinion, tion granted as a matter of course comto the utter subversion of the constitution. prized within the standing order of the On that ground, he could venture, in the House ; and that it was contrary to parliafirst instance, to pledge himseis, that he mentary customs to refuse it. With rewould prove that no such power, under gard to the present motion, it was highly any pretence, could be exercised, without necessary that the judges' opinions should the previous consent of parliament. But be had.' Government was flattered, asif there could, it would be the most irre- sisted, and supported by Jacobites, Tories, fragable argument with their lordships, he and Highlanders, who were now raising presumed, to do every thing which de- large levies of men, for the support of pended upon them, to apply a speedy and measures, which had proved to be exceedeffectual remedy. He further contended, ingly injurious to the interest and honour that the question was of the first magni- of Great Britain : that this was a new and tude, and called for the most ample and a very alarming case; that therefore it was solemn discussion. The measure of raising well worth the enquiry of their lordships, troops, without the consent, and during and if found to be illegal, deserved their the sitting of parliament, was not only most pointed and severe censure. illegal, and unconstitutional, but a high The Earl of suf lk argned, that from violation of the fundamental privileges of what he knew of the present state of the parliament. To judge of the necessities army, and the necessity for having as of the state, in point of measures offen- many men as could possibly be collected, sive or defensive, and to make provisions for the public service, the summoning the accordingly, was of the very essence of judges, for the purposes declared in the parliament; to take any measure there- motion, would not appear expedient at fore, while the parliament was in being, this moment; and that he, for one, should and of course in an active, and not passive put his negative upon it. state, without previous information, con- The Earl of Shelburne said, the national (VOL. XIX.]
concerns were indeed in a very precious The Earl of Marchmont said, the judges predicament, if, when modes of raising were never called upon by their lordships, troops, altogether new, and apparently but in two cases : one was in matters of unconstitutional, were publicly practised, right, pleaded at the bar; the other was upon a lord of that House stating his relative to the legal construction of an act doubts as to the legality of the manner of parliament. of raising levies, their lordships were to be The Earl of Suffolk said, that the duties told by one of the King's servants of the of the judges required their attendance in inexpediency of attempting to solve those another place, and that if their presence doubts, and on that ground only the at- was required here, it might be productive tempt was to be frustrated ; an attempt of the worst consequences. which went to an ascertainment, whether The Duke of Richmond insisted, that the constitution was or was not to be en- during the sitting of parliament their dangered. The earl declared, that he proper place was on the woolsack ; that had arrived in town only the preceding they formed in some measure a part of the evening, and had not found time suffi- House; and that according to its rules and ciently to investigate the subject; but that orders they were always supposed to be the poble earl had done him the honour present. He said he would not admit of to communicate his opinion to him, and negative proots, and called on the noble that he clearly saw the noble earl meant earl who spoke last but one, to produce a to consider a grand constitutional point ; single precedent in which the request now that therefore he had attended : that he made had been refused. conceived the summoning the judges to
Earl Gower acknowledged, that two be a motion of course, and although he judges during the sitting of parliament were was not willing to do the public so much supposed to attend; but he understood, disservice, as wantonly to sport with their and never heard it disputed, that it lay in property, by calling for the judges with the breast of the House, and not in that out occasion, he could not conceive that of a single member, to enforce their attheir attendance for one day would be a tendance. The reason of the thing pointmatter of great inconvenience, especially ed out its propriety, because it was plain, as he observed that the Chief Justice (be- what one noble lord might do another fore whom as much business came as be- might; the consequence of which might fore any one judge) found time to attend be, that being called upon day after day, the business of the House pretty con- the public justice of the nation would stantly, and scarcely ever failed when any stand still, and every thing would be question was to be put in the fate of which thrown into confusion. government was concerned. Not (said The Earl of Marchmont mentioned what his lordship) that I think the Judges' opi- he called a case in point. He informed nion of such mighty consequence; few their lordships that he was present in the questions come before this House of which House at the time a motion was made your lordships are not as competent to de- in 1737, relative to the great riot in Edincide as the judges. In grand national burgh, about captain Porteus, who was points I shall never be directed by the executed by the mob, in which a noble opinion of lawyers, nor will I go to West- duke moved for the attendance of the minster-Hall to enquire whether or not the Scotch Judges, relative to a point of law. constitution is in danger. I speak there- The question was carried, but the Judges fore now merely upon the rights and pri- refused to attend, and the affair dropped. vileges of parliament.
From this instance his lordship concluded, Earl Gower objected to the withdrawing that though the Judges were ordered to of the motion with a liberty to repeat it in attend, they might refuse to comply. the same words; therefore the noble earl The Duke of Richmond again insisted, had the option of now abiding by the ques that the Judges formed a part of the tion, as first put, or omitting that part of House; and as a proof that they did, he it relative to summoning the judges. had enquired of the clerk, who informed
The Duke of Richmond said, that if the him, that there were writs always issued matter propounded to the judges, when previous to every new parliament, requirthey did attend, was improper, the House ing their attendance; though they were might put a negative upon it; but in the not returned, like the peers' writs, into first instance he had always understood that House. As to the point of inconvethat such a motion was never refused. niency, it was little; because, during the
terms, it was no great hardship upon the tion of his vote and conduct, to call for Judges to slip up from Westminster-hall
, their attendance to this end: but, my when the business of the courts of law lords, instead of this, I find that none have were over. He had observed, that a no- a right to information that are not in the ble lord (Mansfield) a peer of that House, majority. If the majority think fit, the and likewise one of the Judges, frequently Judges may give their opinion; if they attended in his place. When his absence do not, the minority must remain in igcould be dispensed with upon general as well as particular occasions, he presumed It has been objected, that no single lord upon so vast and important a question has a right to call for attendance of the as the present, neither the justice, nor Judges. In the first place, I deny the legal business of the nation, would stand fact, that any single lord did call for their still. Since he was up, he begged leave attendance. It was the voice of many, to know from the noble lord, if the fact and of those who ought to have the was as he had stated it, relative to the greatest weight with this House; but if it writs being issued out of that House, re- had not been so, and I were alone in this quiring the personal attendance of the motion, I would maintain the privilege in Judges
my own person. Let the Journals of the The Earl of Mansfield said, the fact was House shew an order to the contrary. 80; but as he had been a peer before he | Another objection was on account of the was a judge, he had never received any inexpediency of putting such a question such writ.
to the Judges. Good God! Can it ever It was at length agreed, to defer the be inexpedient to know right from wrong? further discussion of the question, till the Can it be inexpedient to determine legality 4th of February. The motion was ac- from illegality? Isit not our duty to do this? cordingly withdrawn.
I only ask to have the laws of the land ex
pounded to me. I required nothing illeFeb. 4. The Earl of Abingdon. When gal; all I desired was information ; inI made my last motion to your lordships ) tending, that if this mode of raising men for a call of the Judges, in order to take was legal, to propose an association of the their opinions upon the legality of raising independent Whigs of this country, for regiments for his Majesty's service with the purpose of embodying troops to defend out the sanction of parliament, 1 had two the King and preserve the constitution. reasons for doing so. My first was, my If it be illegal, how durst ministers counown conscious want of legal knowledge to tenance and encourage illegality? A third decide upon so important a case. My se objection was, that I had not proved the cond, that the twelve Judges, like the fact that regiments were raising without twelve Apostles, being upright men, (and the sanction of parliament. My lords, yet, my lords, even among these Apostles, this quibble might well become a pleader there was one Judas Iscariot, who, as that at the Old Bailey, but it was unbecoming reverend bench will tell us, betrayed his in him from whom it came, and of the digmaster; and with a kiss too, my lords. nity of this House. Your lordships would God forbid that, under such semblance of hardly force one of yourselves to bring attachment, there be any Judas Iscariot witnesses to the bar to prove a fact of so among our Judges!) I say, my lords, much notoriety. But, my lords, I will that the Judges having not now on the trouble your lordships no more upon this fetters of corruption, (for, my lords, cor- head. Perceiving that the present minisruption has taken a higher course, and it ters are ready to vote away that privilege is our legislators, and not our judges, that which a better ministry would wish to preare corrupt) I was in hopes to have found serve, I shall withdraw my
mo for in them, or at least in a majority of them, attendance of the Judges, and will take an honest and unbiassed opinion. These, the sense of this House upon those points my lords, were the motives of my motion: which were intended to be propounded to but there was still other ground I had to them. rest it upon. I had conceived that the My lords, it cannot be expected of me, Judges, being the constitutional attend that I enter minutely into the discussion of ants of this House, to advise with them in the great and important question that I points of law, was the very reason of their am now about to submit to your lordships' being so; and that it was of right in every consideration. As this would have been peer, for the more safe and better direc- the business of the judges, had they at