raised by the fole defire of protecting their neighbours from fimilar fervice, unless purchased by them fo to do (which might also have been intended by the act): but the spirit and courage of the nation outftript the operation, or even the confideration of the bill, and tendered a force in the true and genuine fpirit of patriotifm, raifed by indignation at the threats of an implacable enemy, and by attachment to their king and country. The ultimate refource, however, in the failure of the volunteers, muft be to the impracticable operation of the defence bill; I am therefore against the whole fyftem, and against this bill as a part, and am against its being

committed.

Lord Ellenborough faid, that if he had not been used to hear the most monstrous propofitions, he should have thought it impoffible that any perfon fhould gravely exprefs a doubt of the prerogative in the King to require the affiftance of his liege fubjects in cafe of an invafion; it must go along with the feeling of every man, even if he had not given himfelf the pains to examine into the ftatutes and rolls of Parliament, which would have foon convinced him that no doubt could arife in the mind of thofe moft difpofed to receive them, of the exiftence of this prerogative. The power of requiring the milivary fervice of every man against the invafion of an enemy, muft in every civilized country exift fomewhere, and it could not be placed in any hands but thofe of the fovereign head of the flare. The country must be without defence unless fuch power could be reforted 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 themfelves with arms. The learned Lord then read out of the statute, "It is commanded that every man have in his houfe harness to keep the peace after the antient affize, that is to fay, every man between 15 and 60 years fhall be affeffed and fworn to armour according to their quantity of lands and goods;" and he alfo read an act of the ift of Edward III. chap. 5th, in these words: No man fhall be charged to arm himself otherwife than he was wont, and no man fhall be compelled to go out of his thire but when neceffity requireth, and fudden coming of strange enemies into the realm, and then it fhall be done, as hath been used in time paft for the defence of the realm." His Lordthip obferved, that it was impoffible

to read this act and withhold conviction 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 commiffion of array which was referred to the confideration of Parliament, in the 5th of Henry IV. would prove the exiftence of this very prerogative. It was immaterial that the act of Henry IV. was repealed, the commiffion contained the prerogative under which it was iffued. The propofition must be fo evident from these words, that the noble and learned Lord thought it would be wafting their Lordships' time to dwell longer upon the fubject.

The Earl of Carnarvon replied, that he had not received the conviction which he had expected from the great knowledge and abilities of the learned Lord, of whofe talents no perfon had a higher opinion than himself; and though I have not (faid the noble Earl) the prefumption to oppofe my judgment to his on legal fubjects, or to enter the lifts with him in the difcuffion of legal antiquities, yet I fhould be forry that the noble Lord fhould think that I have lightly and without examination formed an opinion on this important subject, and I will therefore ftate my reafons for retaining the fame opinion after all that the noble Lord has faid. I am very ready to admit as an axiom of law extending over all the civilized world, that the power to require the military fervice of all men (according to their stations) on the invasion of the kingdom by a foreign enemy, muft exift fomewhere, and that it cannot exift in any other hands but where the fovereign power of the country refides; but I do not draw the fame 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 fovereign power is in many inftances divided between the three states; nor is it pretended that the King is entitled to all powers which may be neceffary to carry on a war into which he has an undoubted right to enter. Whoever, therefore, afferts the former exiftence of a prerogative, now in difufe, is certainly bound to prove it beyond doubt. The learned Lord began with citing the 13th of Edward I. chap. 6th, as if it made part of the military fyftem 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 the act, than the noble Lord has read, it is obvioufly a provifion of arms to keep the peace, and not to carry

on

on war; and in the conclufion of the act it enjoins Cheriffs and conftables" to take heed that thofe fo armed follow the hue and cry of the country;" and the title given to the act is"for the view of arms to follow the hue and cry;" and nothing is fo clear as that this is the meaning of this act, and to this day no perfon is exempt from following the hue and cry of their refpective counties: and if any doubt could fubfift whether this act made part of the general fyltem 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 aft, when it recites and confirms all the other fubfifting acts, which do clearly relate to the general military fyftem. The noble Lord has omitted to read this act of 4 Henry IV. which diftinctly proves that no perfon (whatever encroachment of prerogative may have been attempted) could be called upon for military fervice, but by tenure, and affent and grant of Parliament. The act of the 4th Henry IV. chap. 13th, runs in these words: "It is ordained and established that the ftatute made in the ift 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 neceffity and fudden coming of ftrange enemies into the realm; and the ftatute made in the 10th year of the faid grandfather, chap. 7, That men of arms, archers, and hoblers, chofen to go on the King's fervice out of England, fhall be at the King's wages from the day they do depart out of the counties where they were chofen; and also the sta tute made the 25th year of the faid grandfather, That no man be compelled to find men of arms, archers, nor hoblers, other than those which do hold by fuch service, unless it be by common affent and grant of Parliament, be firmly holden and kept in all points." This ftatute is made to refift encroachments made fince the paffing those acts which it revives ( as if difufed) by recital and confirmation. The firft, is that read by the learned Lord, and is a proof that no enemy being in the land, those who owed fervice to the King, had been haraffed by not paying their wages; and the last states the law of the land refpecting the military fyftem of those days, as if against these encroachments, that no man of arms, &c. fhould be compellable unless by tenure, or confent of Parliament. Nothing can be more clear and explicit than the words of this laft ftatute, which places the military power of the Crown on its undoubted bafis, namely, the military te VOL. II. 1803-4.

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nures, and authority of Parliament. It must be obfervable, that if any prerogative can be inferred from thefe ftatutes, the ftatute thould not be capable of being expounded any other way, but by the fuppofition of fuch a prerogative, namely, that of calling all men out of their counties on the appearance of a foreign enemy, without affent of Parliament; but this ftatute is perfectly intelligible, and applicable to the military tenures known and acknowledged to exist at the time, and therefore this act cannot prefume any fuch prerogative No man is fo little read in the hiftory of this country, as not to know that, from the conqueft, the land was divided into 60,000 knights' fees, productive of 60,000 men, for 40 days military fervice, at the King's plea fure; and that this large military force continued in ftrict practical ufe by perfonal service, until Henry the Second's time, when a relaxation of personal service began to infinuate itself, and the introduction of fubftituted fervice, and gradually a commutation by efcuage certain by agreement, and uncertain when no fuch agreement was made, took place; and that the laft gave occafion to great oppreffion by the claim of unlimited penalties, which rofe to fo great a grievance, that in King John's time it was reprobated by Magna Charta in the words, if I remember right, "Nullum fcutagium ponatur in regno noftro nifi per commune confilium regni." So circumstanced the tenures with their fervices or efcuage continued till their abolition by the 12th Charles II. and the establishment of an extensive militia under Lords Lieutenants of counties and their refpective deputies, and that this continued until the existence of the prefent militia, with the occafional introduction of a more regular and permanent army. In all this period, nothing like the prerogative afferted has been acknowledged. The preamble of the 12th of Charles II. which reprobates the affumption of the command of the militia by Parliament in the preceding reign, and declares the King's right to command all forces raised, does not infinuate the power of railing fuch force by the King's prerogative on any occafion. I am at a lofs on this view of the military hiftory to trace any ground on which fuch a prerogative can have taken root; but I am fure that the acts can be explained by reference to the facts known from hiftory, without having recourfe to an uncertain prerogative. The learned. Lord is certainly more converfant in the channels through which information of this nature can be traced than I am,

and

and he has been more fuccessful in finding the commiffion of array which he has cited, which he fays paffet the Legislature in the 5th of Henry IV. No fuch ftatute appears on the statute book, though (on finding an affertion of fuch a commiffion) I have fearched for it. The commiffion of array, in whatever words it may be couched, would not be convincing to my mind, as I am well aware that the times were productive of incroachments of that fort. The act of ift Edward III. chap. 7th, ftates, that commiffions have been awarded to certain people of thires, to prepare men of arms, &c. and enacts that it fhall be done fo no more. The act of the ift Edward III. chap. 15th, ftates, that by evil counfellors the King had bound people by writing, to raise armed men, and forbids it. Frequent attempts to raife an army by commiffion may have been made, and perhaps fubmitted to at times, and at times reprobated. With refpect to that to which the noble Lord has alluded, and which I have not feen, I can only obferve, that by his own account of it, it muft have derived its authority from Parliament, and not from prerogative. The execution of the ordinances of Parliament is always intrufted to the King; and it appears alfo on the face of the statement, that this commiffion in Parliament the 5th of Henry IV. was only the year following the act of 4th Henry IV. cited by me, which as diftinctly as words can convey their meaning, declares "that no man fhall be conftrained to find men of arms, hoblers, (horfemen) or archers, others than those who hold by fuch fervices, if not by common affent and grant of Parliament." The commillion cannot therefore be fuppofed to contradict the parliamentary doctrine of the year before, and its being contained in an act of Parliament, is a proof that it was in conformity to the doctrine of the preceding year, and derived its authority from Parliament, and not from prerogative.

Lords Morton and Hobart called the noble Earl to order ; to which he replied, that if he had been called to order fooner, he fhould have infifted on his right to put the Houfe into a Committee, which the ftanding orders of the Houfe permitted him to do, but that he had nearly finished all he had wifhed to fay, and should not trouble the Houfe further.

The clerk read the order, which was as the noble Earl had flated.

Lord King delivered his fentiments generally upon the meafure before the Houfe, and cenfured the conduct of Minifters

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