substitute that will. But if any doubt should arise upon this head, for it is im possible to foresee, or at once to provide against all the doubts that may be started by captious lawyers: I say, if any doubt should arise upon this head, when the law comes to be carried into execution, it will be extremely easy to remove it by a new Bill next session, which may be passed any inconvenience, either to the public or to any private man. danger this nation is, and always must be, ❘ exposed to, by not having a well regulated and well disciplined militia, I hope there is so much public spirit among the landed and rich gentlemen of this kingdom, that they will all be not only ready, but proud of serving their country as deputy lieutenants or commissioned officers in the militia. But this we cannot certainly know until we have made the experi-into a law before this doubt can produce ment, and we cannot make the experiment without passing this, or some such Bill as this into a law. If it should by experience be found, that the landed and rich gentlemen of this kingdom are so void of public spirit, and so regardless of the honour and safety of their native country, that few or none of them will accept of being deputy lieutenants or commissioned officers in the militia, methods must then be contrived, either for compelling them by penalties, or for tempting them by immunities or privileges. My lords, I hope, I have now shewn, that this Bill is intended, and it will at least contribute to produce that effect which the noble lord who spoke last seems to be fond of: I mean that of having all. the freemen of this kingdom bred to arms, and taught military discipline; and this he was pleased to allow, and 1 most heartily concur with him in allowing it, to be the best guard we can have for our liberties, and the best military force we can provide for our defence. This, I say, is evidently the plan of the Bill, consequently his lordship must in so far approve of it; and I think I may venture to say, that L have fully answered the only two objections he made to the form in which the Bill now appears, therefore, I hope, I shall have the satisfaction to find his lordship concurring with me in opinion, that the Bill ought to be passed into a law. Lord Chancellor Hardwicke: * *The following is a correct Report of Lord Chancellor Hardwicke's Speech upon this occasion, taken from a copy which the noble and learned lord caused to be printed for the use of his friends. This objection is therefore, my lords, an argument in favour of the Bill now before us, as the legislature of every country ought to have the most certain knowledge how far the public spirit of the people may be depended on, because from thence alone they can judge in what cases rewards or punishments may be necessary, for inducing or compelling men to do their duty to their country; and to qualify ourselves for defending our country by arms, when it becomes necessary, will, I believe, be admitted by all, but those enMy lords; we have it from the thusiasts called quakers, to be a duty in-highest authority, that, in the multitude of cumbent upon every man cf a proper age, and not labouring under any natural or legal incapacity. Then as to the other objection mentioned by the noble lord, it proceeded entirely from an oversight in his lordship, which in such a long Bill I am not at all surprised at; for the Bill expressly provides, that if any person so chosen by lot to serve in the militia, not being a quaker, shall refuse or neglect to take the oaths, and to serve in the militia, or provide a substitute, every such person shall forfeit and pay the sum of ten pounds, and shail, at the end of three years, be appointed to serve again. Surely, if any person chosen by lot should neglect to appear at the time and place appointed by the notice duly served upon him, he must be deemed to fall under this provision, and consequently to be liable to this penalty; for though he cannot be said to refuse, it must be allowed that he meglects to take the oaths, or to provide a A SPEECH in the House of Lords, on the third reading of the Militia Bill, May the 24th, 1756; when the Bill was rejected, on a division, by a very great majority. My lords; I am extremely sorry to find myself obliged to differ from the noble duke (of Bedford) who spoke last. The great respect which I have always professed, and sincerely bear to his grace, will, I am confident, convince him, that I am in earnest in this declaration; and that it is not merely an exordium of form. But, my lords, I am more sorry, that this Bill, so important, and on a subject of so much difficulty, after having depended counsellors there is safety; but we in this nation may from experience say, that in the multitude of legislators there is confusion; for our statute books are increased to such an enormous size, that they confound every man who is obliged to look into them; and this is plainly owing to a great change which has by degrees, crept The army, and to the utmost extent. numbers of your people will not bear it ; and it ought in prudence and good policy to be attended to, that a great army of natives may not be so easily got rid of, either in present, or in respect of the consequences, as foreign troops may be sent home. almost four months in the other House, comes now to be debated originally, and for the first time, in this last stage of it. Nobody has a greater regard than I have for the persons, or abilities, of those who brought it in, that have been the patrons of this Bill; nor can any man be more ready to admit, that it was very laudable in them to turn their thoughts to My lords, the debate now comes upon some scheme, for rendering the militia of the merits of the Bill. All questions of this country useful. It appeared to me, amendment are, on the third reading, out to have been brought in with a reasonable of the case; nor could I observe, when view; a view of prudence and temper; this Bill was in the committee, any distalked of, and believed in general, as if in-position to admit of amendments. tended to lie over to another session of tempts of that kind were rather looked parliament, to be fully understood and con- upon, as if it meant indirectly to defeat the sidered. For what reasons that intention Bill. was departed from, especially as it is avowed, that it can be of no use in our present exigency, I cannot imagine. As I have had the misfortune to be all along of opinion against this Bill, as now planned and formed, I think it my duty to declare my thoughts upon it openly and at large. But, as I am not perfectly well at present, I must desire to be heard with indulgence, and with some excuse for what I shall say. I do not mean this, as to the opinion I shall give, for of that opinion I am in my conscience convinced; and I shall deliver it with the same freedom, as if I had no other seat in this House but my place on the cross benches, and with the same truth and sincerity, as if I was absolutely certain, that it was the last opinion, which I should ever give here. My lords, I am aware that certain prejudices may arise, in the minds of some men, against what I am going to offer to your lordships. They may suspect, or pretend to suspect, that I am against a militia in general; that I am for creating and perpetuating the necessity of introducing foreign forces into this kingdom. But I do absolutely disclaim both these views. I am for a militia, and I am against laying the nation under the necessity of resorting to the aid of foreign forces in general. I think it an unhappy necessity; but I would not have this understood to every intent. There may be instances, in which it may be much more wise and politic to make use of foreign assistance, than to increase your national troops to a vast At The fundamental question, arising upon it, is a constitutional question, and has relation to two of the most interesting points, which can possibly come under the consideration of parliament: 1. The prerogative of the crown, and the general balance of power in this constitution. 2: The state of this country, in respect of the education, employment, and industry of your people. These will be allowed to be important points; and if this Bill alters them, it alters them by a perpetual law. Before I speak to the question, How far the general balance of this constitution will be affected, I beg leave to say a few words concerning the prerogative of the crown. My lords, I can with truth affirm to your lordships, that I am not for stretching the prerogative; nor was I ever thought, by any impartial man, one of those, who are called prerogative lawyers. I am only concerned for the due temperament of this mixed government; that this limited monarchy, established since the Restoration, and improved at the Revolution, may be preserved, and delivered down unhurt to posterity. The history of the dispute in the reign of king Charles 1, about the power of the militia, is well known to all your lordships; and so are the deplorable consequences, which followed from that, together with other fatal contests. At the Restoration, it was found necessary to be settled and quieted. It was one of the first great into our constitution. In old times almost | for, drawn up, and passed, in this House, all the laws which were designed to be where we have the learned judges always public acts, and to continue as the stand-attending, and ready to give us their ading laws of this kingdom, were first moved vice and assistance. From their know. trary supposition. And I hope the Commons will always continue to adhere to this practice. It is right in such fundamental points settled, under ministers who loved The act of parliament of the 13th and 14th of king Charles the second, cap. 3d, was framed with the greatest deliberation in both Houses; and the first part of it is a declaratory law, intended to ascertain the power. But is it not equally right, that the same measure should be dealt to the crown? My lords, there is a plain reason why it was not done. The reason was, that it would have been inconsistent with the enacting part of this Bill. To prove this, I need only refer your lordships to the clause in page 22 of the printed Bill now in my hand, which runs thus; "Be it further enacted, That in case of actual invasion, or imminent danger thereof; or in case of rebellion, it shall and may be lawful for his majesty, his heirs, and successors (the occasion being first communicated to parliament) to order and direct his lieutenants, or on their death, removal, or absence, any five or more de That act recites," Forasmuch as within all his majesty's realms and dominions, the sole and supreme power, government, command, and disposition of the militia, and of all forces by sea and land, is, and, by the laws of England, ever was, the undoubted right of his majesty and his royal predecessors, kings and queens of England, and that both, or either of the Houses of Parliament cannot, nor ought to pretend to the same, &c." "Be it therefore declar-puty-lieutenants, with all convenient speed, ed and enacted, &c." Consider, my lords, what is now done by the present Bill. The act of 13 and 14 Car. 2 is absolutely and totally repealed from Michael. mas day next; and consequently this declaration is repealed. It is a reversal of this parliamentary judgment. The method should have been to have asserted the right, and to have repeated the same proposition in the present Bill, which is contained in the former law. It was obvious, and is the common method of parliament. What do the Commons do in every Mutiny Bill, which they annually send up to your lordships? They constantly insert the same preamble, and repeat the recitals. "That a standing army in time of peace; execution of martial law in time of peace, are against law." These points are as known established law, and declared by as express acts of parliament still in force, as the power of the crown over the militia; and yet are always repeated by way of continual claim, even in Bills, which import no repeal, nor colour of repeal, but proceed on the con to draw out and embody all the regiments and companies of militia men, or so many of them as his majesty, his heirs, and successors, shall judge necessary, beginning with such county or counties as shall be nearest to the danger, and so proceeding regularly, till a sufficient number of troops shall be drawn out and embodied, and the same to direct to be led by their respective officers into any parts of the kingdom, for the suppression of such invasions and rebellions." Here your lordships find the only power which is given by this Bill to the crown to make use of this militia; and a formal communication of the occasion to parliament is made a condition precedent, indispensably necessary to the exercise of it. Many cases may happen wherein the king's crown may be endangered, this nation be undone, before any one man of this militia can lawfully be made use of. Suppose imminent danger of an invasion should appear, or a rebellion break out, and the parliament be under a prorogation for six weeks or two months; they cannot by law be convened before the day. It was once attempted in the year 1667, on the occasion of De Ruyter's coming up to Chatham, and, upon great deliberation, departed from. ledge and experience they must be allowed to be best able to tell, whether any grievance complained of proceeds from a non-execution of the laws in being, and Suppose such an emergeney should arise, the parliament being then actually sitting, or capable of meeting in due time, and, upon the communication required by this Bill, either House of Parliament should address the crown not to call out the militia, or vote that it is not a proper occasion for calling them out, what officer, what minister of the crown, will venture to order them to march out; or, if they should, would they be obeyed? From the strict penning of this clause, it also follows, that the crown cannot make use of this militia to suppress a sudden insurrection, or even a mob. Another substantial restraint upon the crown is, that no pay is provided for this militia by the Bill, nor any method of raising money for it. The avowed scheme is, that it should be provided for only by annual grants in parliament. Your lordships all know, and feel, that those are in the discretion of the Commons, whether they will grant them or not. I will not suffer myself to doubt, but that in fact they will do it; but, in making perpetual laws, as little as possible should be left to accident. This creates another essential difference between the act of 13 and 14 Car. 2, and the Bill now sent up to your lordships; for, by the former law, standing powers are given to compel the pay of the militia, though by accident they may sometimes be interrupted. I think I have now clearly proved to your lordships that, by this Bill, the power of the militia is taken away from the crown. Permit me, my lords, to stop here, and ask, and I do it with confidence, what ground is there for that spirit of jealousy, which runs through this Bill? I will not make use of the king's name improperly; but when the question is concerning taking away power from the king, or giving power to him, it is parliamentary and necessary. It is not within the compass of language to make one's self understood, without naming, or, at least, describing the crown. Has his majesty, who wears the crown with so much lustre, deserved this jealousy? Every lord who hears me, will agree with me that he has not. Look whether it be of such a nature as may be redressed by a new law. In the former case, a new law must always be unnecessary, and in the latter it must be ridiculous; back through the legal, the mild, the benign course of his reign. After a reign of almost thirty years, the king may make Samuel's appeal, when he demitted his high office of judge of Israel, under the theocracy, "Whose ox, or whose ass have I taken, or whom have I oppressed?” What I contend for is, that nothing may be done in derogation of the rights of this limited monarchy; nothing done to hinder his majesty from transmitting the crown untarnished, and with equal lustre, to that amiable illustrious young prince his successor, on whom all our hopes are fixed, after God shall take him from us. But, my lords, it is not in this point of prerogative only, that the Bill operates a change in your constitution. In the execution of the most material powers given by this Bill, the commissioners of the land-tax are made integral constituent parts of the meetings. They are let in without stint as to number, and three of them are made necessary to be of the quorum, although no more than one deputy-lieutenant is required; so that the commissioners of the land-tax may, at the greater part of those meetings, out-vote the deputy-lieutenants. Care has indeed been taken to insert words in this Bill to carry an appearance of raising the qualifications of the commissioners of the land-tax, who are enabled to intermeddle in the execution of this act. But this clause is merely a shadow of raising the qualification, for it is in reality lowered by it. It provides, "That no such commissioner shall be capable of acting in the execution of this act, unless he be seised and possessed, in his own right, of lands and tenements of the clear yearly value of one hundred pounds, or more." Whereas the acts for the landtax enact, that no commissioner shall be capable of putting those laws in execu tion, unless he be "seised and possessed of lands or tenements which were taxed, or did pay, in the county or riding for which he shall act, for the value of 1001. per annum, or more, of his own estate." From hence the fallacy in this Bill is mani fest; for every body knows, that, in most of the counties in England, lands, assessed to the land-tax at the rate of 100l. per annum, are of much better value than lands and when by the opinion and advice of the judges we find, that neither of these is the case, we have their assistance, whereby we are enabled to draw up a new law in barely of the rent of 100l. per annum. And it might be further observed, that the omission, in this Bill, of the words, "in the county or riding for which he shall act," will make it very difficult to find out the want of qualification in any of the commissioners, who may assume power under this new law. such a manner as to render it effectual and easy to be understood. This is the true reason why, in former times, we had but very few laws passed in parliament and tices of the peace, excepting only at the particular times when they shall he marched out for actual service. Look through the Bill, and every punishment upon the common men (for I find none at all provided against the officers) is by complaint before justices of the peace. This is extended even to the most material point of military service, and the greatest exigency. If any militia-man, so ordered to be drawn out and embodied as this Bill directs, shall refuse to march in pursuance of such order, he is to be punished only by a pecuniary penalty, the forfeiture of forty pounds upon conviction before two or more justices of the peace: and, in case such penalty shall not be immediately paid, to be committed by their warrant to the county-gaol for the space of twelve months. Is it not surprizing that it should enter into any man's head to invent such a penalty, as a military punishment, against a common soldier, for disobedience to orders, which require immediate marching and action? I have sometimes wondered, what could be the reason why those, who had the framing of this Bill, were so fond of investing the commissioners of the land-tax with these extraordinary and extensive powers; for, as to myself, I have hardly met with any body, either in or out of parliament, who professes to approve of it. What kind of persons are these commissioners of the land tax? Many, even of the acting ones, are some of the lowest people of any kind of property in this kingdom; and yet this whole militia, an army of near 62,000 men, may come, in effect, to be formed and modelled by them. Whenever they have been invested with any authorities or powers beyond their proper office, they have generally done harm. As one demonstration of this, I But this is not all. Here is no clause need only call to your lordships' minds, inserted in this Bill to take away or exthe many abuses, in the execution of the clude the writ of Certiorari, for removing laws about the distempered cattle. these proceedings into a superior court; a But, in the present case, it is to be con-provision frequent in modern laws, where sidered in a higher light. They are a body of men named solely by the House of Commons; not one of your lordships is ever appointed. The Commons will not suffer you, or the crown, to interfere in the nomination. So here may be a militia, taken out of the power of the crown, and modelled by a set of men, entirely independent of the crown and of the peers. I object to this, as it will affect the balance of the constitution. The scale of power, in this government, has long been growing heavier on the democratical side. I think this would throw a great deal of weight into it. What I contend for, is to preserve the limited monarchy entire; and nothing can do that, but to preserve the counterpoise. My lords; there is another thing under this head, which deserves to be attended to by your lordships. The whole discipline of the militia is by this Bill taken out of the deputy lieutenants, and the officers of the militia, and put into the jus delay is not so fatal. On the contrary, every one of these convictions is left liable to be removed up into the court of King's Bench; by means whereof their effect must be suspended, whilst the matter is depending there. If one could possibly be disposed to indulge humour on so grave an occasion, I might congratulate my friends, the judges of the King's-bench, on their being made inspectors general of this army. Thus the government of the militia is, in the first place, taken out of the crown; next out of the hands of the deputy lieutenants, and their own officers; and then brought into Westminster Hall. What a plan of discipline is here for an army? My lords; I know there are those, who assert that the scheme of this Bill will encrease the power of the crown. In my opinion, as the present Bill is formed it will do the direct contrary. But I allow that it will finally depend on future acts of |