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hip concluded by moving, that the bill be then read a fe, cond time. On the question being put,
The Earl of Carnarvon rose and said, I should have felt no objection to almost any system, whether of volunteers or armed peasantry, which could have added useful Itrength to the country at a moment when all its energies must be ex, erted, provided in its formation it had not a tendency to pre. judice our more effectual and regular force, and the constitus tion of the country had not been unnecessarily impaired. A spirit and courage, more than equal to the dangers that threaten, has manifested itself in every class of people universally through every part of the country in a manner with out example; and might have supplied his Majesty's Minifters with ample means of organizing some permanent system of defence, capable of rehisting any attacks which our most inveterate enemies could make upon us now, or at any future period. But Ministers have been bewildered with the quantity of materials in their hands, and whatever advantages might have been derived from a volunteer system, have been lost by their mismanagement; they have so singularly arranged it, that it is incapable of being substantially amended in a Committee, and instead of a volunteer force which might have been firinly relied upon in the time of danger, they have erected a fabric which may dissolve before the moment of its use. They have encouraged and accepted offers, re. serving to the corps the extraordinary power of withdrawing their services at pleasure, at any time before the appearance of the enemy; so that the danger may meet us, without force; and to ihis absurdity they have pledged the King's faith, and put it ont of the power of a Committee to correct this error. This evil is further increased by a review of the cu. jious fabrication of that which is peculiarly called the defence bill. I agree with the noble Secretary of State, that the merits of the volunteer system proposed to be amended by This bill, cannot be duly estimated but by a consideration of the general state of the defence of the country. I must therefore consider the defence act and the present bill as one, they are indeed so interwoven that they cannot be separated; the first is the reputed parent and heir of the latter, for the noble Secretary informs us, that the failure of the volunteer system, is to be replaced by the execution of the defence act, which is now placed on the shelf and remains a dead le!ter. This
extraordinary extraordinary act is founded on an affertion of an ancient pre. rogative of the Crown of which not the slightest proof was pro duced when the bill was urged with such precipitation i hrough this House, that it passed in two days without the usual forms, as if discussion was dangerous. The assertion of this unknown though it seems undoubted prerogative, seems to have been intended for the sole purpose of making the extraordinary provisions of the bill appear to be deeply rooted in the ancient constitution of the country, left the system adopted by the bill thould appear as repugnant to inankind, namely, of blending all classes and conditions of men, from the Prince of Wales (the first subject) to the lowest beggar that intests the streels, in one common array as common soldiers equally ferv. ing in the ranks and liable to the most disgraceful punishment for offending the dignity and commands of a Chelsea pensioner serjeant or corporal to be placed over them, equally liable from the highest to the lowest to be transferred to ihe ranks of the regulars, militia, or fencibles. The Prince of Wales, if he had not fortunately been colonel of a regiment of dragoons, would have found that his station in the country, when its dangers call every man to his post, is decided by this act to be in the ranks, a common soldier, looking to corporal's rank as promotion. No man but those who formed this plan could believe such an impracticable system of folly could have Luggested itself as a serious systein of defence to a set of men calling themselves statesmen, or could expect a facility in its execution, introduced by the assertion of a prerogative which never existed nor could now be put into execution. But in truth this system was not so much calculated or intended to be acted upon, as to create a terror which should have the effect of railing volunteers by compulsion, on whom the framers of the bill placed their uliimate trust for che defence of the country. The whole structure of the defence bill marks that this forced body of volunteers was the object of an act which has ultimately lodged in the Crown a power which is subverfive of the constirution of the country and the liberties of all classes. By this ingenious contrivance it was expe&ied ihat volunteers would come forward to protect their neighbours from the oppreslive operation of the act, and being so produced would make a better defence against the enemies ihan an army composed by the act of persons whose education, habits of life and inclination revolted agair.ft the position in which they were placed by force. The framers of the bill might liave in vain wailed for any extensive army of volunteers
raised by the sole desite of protecting their neighbours from fimilar service, unless purchased by them so to do (which might also have been intended by the act): but the spirit and courage of the nation ou stript the operation, or even the consideration of the bill, and rendered a force in the true and genuine spirit of patriotisın, raised by indignation at the threats of an implacable enemy, and by attachment to their king and country. The ultimate resource, however, in the failure of the volunteers, must be to the impracticable operation of the defence bill; I am therefore against the whole system, and against this bill as a part, and am against its being committed.'
Lord Ellenborough said, that if he had not been used to hear the most ionstrous propositions, he should have thought it in.possible that any person should gravely express a doubt of the prerogative in the King to require the assistance of his liege subjects in case of an invasion; it must go along with the feel. ing of every man, even if he had not given himself the pains 10 examine into the statutes and rolls of Parliament, which would have soon convinced hiin that no doubt could arise in i the mind of those most disposed to receive them, of the existence of ibis prerogative. The power of requiring the milivary service of every man against the invasion of an enemy, most in every civilized country exist somewhere, and it could not be placed in any hands but those of the sovereign head of the fare. The country must be without defence unless such power could be resorted to: whoever had the right to make war, must have the power to carry it on; and if the noble Lord had been at the trouble of reading the acts, he would have found that in the 13th of Edward I. all men, according to their faculties, are ordered to provide themselves with arms. The learned Lord then read oui of the statute, “It is commanded that every man have in his house harness to keep the peace after the antient allize, that is to say, every man between 15 and 60 years shall be assessed and sworn to armour according to their quantity of lands and goods;" and he also read an act of the ift of Edward III. chap. 5ih, in these words : "No man thall be charged to arm himself otherwise than he was wont, and no man thall be compelled to go out of his chire but when neceflity requireth, and · sudden coming of strange enemies into the realm, and then it shall be done, as hath been used in time past for the defence of the realm." His Lord'hip observed, that it was imposible
to read this act and withhold convi&tion of the exifting prerogative to call out every man upon the coming of strange enemies into the land ; and if more proof was required, the commission of array which was referred to the consideration of Parliainent, in the 5th of Henry IV. would prove the existence of this very prerogative. It was immaterial that the act of Henry IV. was repealed, the commission contained the prerogative under which it was issued. The proposition inust be so evident from these words, that the noble and learned Lord though: it would be wasting their Lordships' time to dwell longer upon the subject.
The Earl of Carnarvon replied, that he had not received the conviction which he had expected from the great knowledge and abilities of he learned Lord, of whofe talenes no person had a higher opinion than himself; and though I have not (laid the noble Early the presumption to oppose my judgment to his on legal subjects, or to enter the lists with him in the discussion of legal antiquities, yet I should be sorry ihat the noble Lord should think that I have lightly and without examination formed an opinion on this important subject, and I will therefore state my reasons for retaining the same opinion after all that the noble Lord has said. I am very ready to admit as an axiom of law exiending over all the civilized world, that the power to require the military service of all men (according to their stations) on the invasion of the kingdom by a foreign enemy, must exist somewhere, and that it cannot exist in any other hands but where the sovereign power of the country resides ; but I do not draw the same inference as the noble Lord does, that it is therefore (by force of the principle contained in the axiom) placed in the hands of the King, in this country, where the monarchy is limited, and the sovereign power is in many instances divided bei ween the three states ; nor is it pretended that the King is entitled to all powers which may be necessary to carry on a war into which he has an undoubied right to enter. Whoever, therefore, asserts the former existence of a prerogative, now in disuse, is certainly bound to prove it beyond doubt. The learned Lord began with citing the 13th of Edward I. chap. 61h, as if it made part of the military system of that age for the defence of the country against foreign enemies, or was intended to arm the King's hands for war. Without going further into ihe act, than the noble Lord has read, it is obvi. ously a provision of arms to keep the peace, and not to carry
on war; and in the conclusion of the act it-enjo'ns Theriffs and constables “ to luke heed that those lo armed follow the hue and cry of the country ;” and the riile given to the act is «« for the view of arms to follow the hue and cry;" and nothing is so clear as that this is the meaning of this act, and to this day no person is exempe from following the hue and cry of thir respective counties : and if any doubt could sunlit whether this a&t made part of the general syltem of offence and defence against foreign enemies, the act of the 4th of Henry IV. chap. 13th, puts it out of doubt, by omitting this act, when it reciles and confirms all the other sublifting acts, which do clearly relate to the general military system. The noble Lord has omitted to read this act of 4 Henry IV. which diftin&tly proves that no person (whatever encroachment of prerogative may have been attempied) could be called upon for military service, but by tenure, and assent and grant of Parliament. The act of the 4th Henry IV.chap. szih, runs in these words : “ It is ordained and established that the Ita. tuté made in the ist year of King Edward III. grandfather to our Lord the King that now is, containing that none shall be constrained to go out of their counties but only for cause of necellity and sudden coming of strange enemies into the realm ; and the statute made in the 10th year of the said grandfather, chap. 7, That men of arms, archers, and hoblers, chosen to go on the King's service out of England, Thall be at the King's wages from the day they do depart out of the counries where they were chosen ; and also the statute' made the 25th year of the said grandfather, That no man be compelled to find men of arms, archers, nor hoblers, other than those which do hold by such service, unless it be by Common assent and grant of Parliament, be firmly holden and kepi in all points." This statute is made to refilt: encroachments made since the passing those acts which it revives ( as if disused) by recital and confirmation. The first, is that read by the learned Lord, and is a proof that no enemy being in the land, those who owed .service to the King, had been harassed by not paying their wages; and the last states the law of the land respecting the military system of those days, as if against these encroachments, that no man of arms, &c. should be compellable unless by tenure, or consent of Parliament. Nothing can be more clear and explicit than the words of this last statute, which places the military power of the Crown on its undoubled balis, namely, the military teVol. II. 1803-4.