Lord North' s motion for leave to introduce the Bill

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HOUSE OF LORDS.

Wednesday, November 1, 1775.

The Duke of Manchester rose and said: My Lords, I beg leave to call your attention to a subject of as great importance to the liberty of this country as America was to its wealth and power, before the violence of the times had wrested that treasure from the British Crown, and spurned the jewel because the setting appeared uncouth. I do not mean, my Lords, to dwell long on the unfortunate story; the page of future history will tell how Britain planted, nourished, and, for two centuries, preserved a second British empire; how, strengthened by her sons, she rose to such a pitch of power, that this little Island proved too mighty for the greatest efforts of the greatest nations. Within the space of twenty years, the world beheld her arms triumphant in every quarter of the globe, her fleets displayed victorious banners, her sails were spread, and conquest graced the canvass. Historick truth must likewise relate, within the same little space of time, how Britain fell to half her greatness; how strangely lost, by misjudging Ministers, by rash-advised councils, our gracious sovereign, George the Third, saw more than half his empire crumble beneath his sceptre: America, late the strength, now the foe to Britain, dismembered, torn, I fear forever lost to England, whence she sprung. With this calamity heavy on us, our duty, interest, and love to that country which still remains, calls on us to be strictly watchful of its liberty. The late Speech from the Throne has given a just alarm, has made a wound upon the

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constitution, which, if not quickly healed, may spread a dangerous venom. The sentiments it breathes are full of higher claims of prerogative than any speech that I can remember since the Revolution. It appears to contain slights of this Council, neglect of Parliament, indifference of their approbation. The part I wish to call your Lordships' attention to is that wherein his Majesty informs the House, "he has taken possession of the garrisons of Gibraltar and Port-Mahon with his Hanoverian forces." Far be it from me to impute the sentiments of this speech to the respectable mouth that was made to utter it. I am confident his Majesty has too high notions of what is right, too great a love for justice, to wish to invade knowingly the real privileges of this nation. I may go further, my Lords, and even acquit the Ministers of any wicked, premeditated design to infringe the subject' s liberty. I do not think such evil of them; but I cannot so easily acquit them of ignorance of our laws, or indifference or inattention to them.

My Lords, I take it to be an undoubted truth, an axiom in this Government, that the King can maintain no standing forces,"other than what are approved by Parliament. But that I may not appear to build on my own reason only, give me leave to quote some acts of Parliament in support of what I have advanced. I must begin by that great declaration of our liberties, the Bill of Rights. This act, my Lords, contains the claim of various indubitable rights from ancient usage, nor asks as favours any part. It is a capitulation with our Kings. The act declares the raising and keeping a standing army within the kingdom, without consent of Parliament, is against law. The next I shall quote is the Mutiny Bill, which sets out in the preamble in the words of the Bill of Rights, but proceeds," that it is necessary for the safety of the kingdom, the defence of the possessions of the Crown, and the preservation of the balance of Europe, that a certain number of forces should be kept up." It then limits what the number should be. I am well aware, it may be said the garrisons of Gibraltar and Port-Mahon are not in that number; whence, or for what reason that irregularity arose I am ignorant; but thus far it is cured, that they are annually provided for as to pay and maintenance by Parliament, and therefore must be supposed approved.

My Lords, in the course of the late war, it was thought necessary to raise a regiment of Americans of four thousand men, in which some foreign officers were to serve; but it was not by the King' s prerogative, but by act of Parliament. At that time that great man, Lord Chatham, was Minister. In this act, though passed amidst all the turbulency of a war, flagrante bello, the greatest precautions were taken to guard the people' s rights; the number of foreign officers were limited to fifty, the soldiers were to be naturalized subjects, Protestants, to take the oath of George I, and the Colonel was to be a natural born subject.

I will now bring your Lordship down to an act of later date — of so fresh a time that there are few in this House who were not in that Parliament that passed it; I mean the 8 George III, to increase the Irish Army. This act recites, in the preamble, the Act of 10 William, for disbanding the Irish forces, and then provides that as it may be necessary to keep up, for the defence of Ireland, twelve thousand men, in order to give some assistance to the foreign garrisons, the army should be increased to fifteen thousand two hundred and thirty-five, all natural born subjects. We see here the King calling for assistance of the British Parliament, in order to increase the army in Ireland. He does not, even at the head of the Parliament of that kingdom, think his authority sufficient, without sanction of the Parliament of Great Britain, to make the least addition to his forces. I must likewise take notice, my Lords, that it will be matter of much doubt whether Hanoverian forces, employed at Gibraltar or Minorca will be under any law of war. The Mutiny Act extends but to troops therein specified, or voted by Parliament. What law will they then be under? They cannot carry Hanoverian laws with them. The laws of England alone can govern; as British subjects, they will be under the protection of British laws.

My Lords, the King' s prerogative I conceive to be no greater in one part of his dominions than another; the subject is equally protected by the laws, whether shivering in the highlands of the north, or scorching upon Gibraltar' s rock. The late determined case of Fabrigas and Mostyn

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has cleared the subject' s rights. From every instance I have had the honour of submitting to you, and from the constant practice, I must infer that the King has no right to maintain, in any part of the dominions of the British Crown, any troops other than are consented to by Parliament, both as to number and to nation.

I will therefore conclude with moving, "That bringing into any part of the dominions of the Crown of Great Britain the Electoral Troops of his Majesty, or any other foreign troops, without the previous consent of Parliament, is dangerous and unconstitutional." I must observe that, by unconstitutional, I mean, is against law.

Which being objected to, and a question stated thereupon:

The Earl of Rockford confessed that he was one of his Majesty' s Ministers who advised the measure, against which the vote of censure was now moved; that he was fully satisfied it was perfectly justifiable, and was ready to abide the consequences. That however far the professions of any noble Lord might go, he would yield to none in a warm and steady attachment to the Constitution, to the very bill now so justly extolled, the Bill of Rights, that great foundation of our liberties; but saying this, he could not perceive that, in the most remote degree, that law could be construed to reach the measure now so peremptorily condemned. For his part, he was unable to see how it offended against the law, either in letter or spirit. The clause plainly importing two conditions: bringing troops "within the kingdom," and "in time of peace;" whereas it was evident to the clearest demonstration, that the troops in question were not within the kingdom; nor would any Lord venture to affirm that we were now debating in a time of peace and tranquillity. Those were the motives which induced him to concur in the measure; nor had he heard a syllable urged against the propriety of it, since it became a matter of publick discussion, sufficient to alter the opinion he at first conceived. But having learned that a noble Lord in the other House, [Lord North,] who was governed by the same reasons, finding that they did not strike several gentlemen in the same light, was now probably moving a Bill of Indemnity, for the purpose of dispelling all apprehensions; and as that would of course meet the ideas of the noble Lords on the other side, he must be under the necessity of moving the previous question. He knew how unfavourable to the full debate and discussion of questions of importance this mode of proceeding was deemed; yet, he believed, when the motives he now alleged were attended to with candour, he should appear fully justified in the opinion of every part of the House. His Lordship resorted to a variety of other arguments in defence of the measure, particularly on the ground of expediency, and the urgent necessity there was for adopting it, in order that the troops which the Hanoverians were intended to replace might return to this kingdom, so as to forward the necessary embarcations for America early in the spring. He observed that the fears suggested by the noble Duke were ill founded; for still there would be a considerable force, composed of British troops, remaining in the garrisons; in the proportion at least of fourteen hundred to one thousand in one fortress, and six hundred to nine hundred in the other. In short, his Lordship defended the measure, on its being legal, constitutional, and expedient.

Earl Talbot spoke against the propriety of the Act of Indemnity, alluded to by the last noble Lord. He had never heard it so much as asserted, that an act of indemnity answered any other purpose than to secure the advisers of measures against private actions, arising from damages sustained by personal contracts. Such were the cases relative to the importation of hides, and stopping the ports in 1766, to prevent the exportation of corn. As to the law declaring those rights, so warmly contended for by the noble Duke, it could not admit of a ground for an impeachment, because that law stated nothing as describing any particular species of offence, and consequently annexed no punishment. In his opinion, therefore, a Bill of Indemnity could not apply, because the measure, if at all illegal, which he was convinced it was not, called for no protection against either impeachment or private actions.

The Duke of Grafton began with expressing his astonishment that any Lord in that House, any real friend to his country, any man who loved the Constitution he was born under, could employ his time in commenting on the letter, and explaining away the spirit of that great bulwark of the

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Constitution, the Bill of Rights; that law which, as it were, circumscribed within it the laws and liberties of the people of England. He should not, he said, enter into the quibbles or distinctions of Westminster-Hall, or weigh each word and sentence to see what was its distinct, legal, or grammatical import. No; he should appeal to the spirit, the intention, of that new Magna Charta, that claim of old rights newly ascertained, the manifest purpose for which it was framed, the co-existing circumstances that gave it being on the part of an oppressed people; should look upon it in the light of a solemn contract entered into between the people and their newly elected Sovereign; a compact meant to be binding on their respective posterity and successors. Whenever that sacred palladium was taken away, at that instant he would be bold to affirm, the laws, Constitution, and liberties of England would be annihilated.

His Grace next proceeded to recount the particular circumstances, previous to the Revolution, which made such a declaration necessary at that period; and adduced several cogent arguments to show that James II, had he been politick enough to accede to such a declaration, might, with less noise and infinitely more safety, have effected his purposes, than he could have done by any other means; for, had the letter of the law been stretched in one instance, the spirit explained away in another, the business would have been executed without risk or danger. The arguments urged by the Lords on the other side, if pushed to their full extent, would go much farther than, perhaps, they chose at present to avow. Certainly, if "within the kingdom" did not comprehend the possessions of England, foreign troops to any number, and on any occasion, might be legally introduced into Scotland; for the argument went fairly to this Scotland being not within the kingdom at the time the Bill of Rights was passed, foreign troops may be introduced and kept on foot there, without consent of Parliament. His Grace remarked, that such opinions being entertained by great numbers in both Houses of Parliament, was not what sunk so deeply into his mind; but when he heard a noble Lord, high in office, [Lord Rockford,] one of his Majesty' s Secretaries of State, one of his confidential servants, high in his favour, and having the ear of his Sovereign, avow such sentiments, he confessed he was struck with astonishment and grief, lest such dangerous doctrines may have made an impression on the best of minds, unfavourable to the liberties and peace of his subjects; yet, in the midst of his anxiety on this account, he was rejoiced to hear from his Lordship that the noble Lord in the other House, and his brethren in this, meant to bring in and support a bill for the purpose of removing the apprehensions and dispelling the jealousies produced by so unpopular and unconstitutional a measure. If this was to be the case, he would, for his part, accept of it, and would wish to postpone the motion before their Lordships, though he must still continue to feel for the great interests of the nation, while on so critical and tremendous an occasion, at the very eve of a contest, which, in all probability, must forever decide on the glory, honour, interest, external greatness, and internal happiness and prosperity. The persons to whom his Majesty was pleased to commit the government of his kingdoms had observed a most criminal silence respecting their great line of conduct in the future progress of this very weighty and important business.

His Grace likewise remarked, in answer to something which dropped from the two noble Lords who opposed the motion relative to the legality of augmenting the standing forces in any part of the British dominions out pf this kingdom, that, when he had the honour to preside at the Treasury, and to be one of his Majesty' s advisers in the year 1768, on the augmentation of the troops on the Irish establishment, from twelve to fifteen thousand men, he applied to the first law officer of the Crown at that time, whether the measure would be justifiable in point of legality, as it was repugnant to the Disbanding Act of William III, which provided that the standing military force in England should not exceed seven thousand men, nor in Ireland twelve thousand, in time of peace; but that able man gave his opinion, that the proposed augmentation of the Irish troops would require an act of Parliament for its aid. If such was the caution of the Ministers of that day, if such was the opinion of the first law officer, what shall we say to the present, where, I will venture to maintain, every sanction or apology is wanting?

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His Grace wished, before he sat down, to know from the Ministers, whether the first law officer of the Crown, for whose abilities and integrity he entertained the highest opinion, had been previously consulted?

The Earl of Rockford denied that he gave any assurance that the noble Lord in the other House would move a Bill of Indemnity; or that he and his brethren in office would support it in this, if he did. All he meant was, that probably the noble Lord who presides at the Treasury Board might, to quiet the ill-founded fears of the country gentlemen, move some proposition, or perhaps the Bill of Indemnity itself; but whatever measures those fears might give birth to, he would now, as he had done before, put in his claim to be understood, that he did not think there was anything illegal or unconstitutional in bringing the Hanoverian troops into the fortresses of Gibraltar and Port-Mahon, under the circumstances which suggested the measure. He was at a loss to know what the noble Duke meant by the charge of "criminal silence," made on him and the rest of the noble Lords to whom his Majesty had committed the immediate conduct of publick affairs. Surely his Grace did not intend that they should come to that House and lay before it all their private information, produce a list of the names of those who gave it, and enter into a detail of every step intended to be taken, and every operation meant to Be carried into execution, should America persist to the fatal extremity of compelling this country ultimately to have recourse to coercive measures. This, his Lordship observed, would indeed be as great an act of folly and absurdity as any attributed to them by their adversaries, throughout the whole of their Ministerial arrangements.

Lord Lyttelton rose, to support the sense the noble Duke put upon the noble Earl' s words. He said, it was in his recollection (he was sure it was in the recollection of every noble Lord in that House) that the reason, or rather the apology the noble Earl in office made to that House for putting the previous question on a motion of such singular importance, was, that a noble Lord, high in office, in the other House, intended this day to make a motion for leave to bring in a Bill of Indemnity, in order to obviate and remove the apprehensions of the country gentlemen. If, then, the noble Earl meant to retract or explain away his words, he would be bold to say, that the present motion would meet with much stronger support than his Lordship was aware of; on the other hand, if the noble Lords in office would speak out, and pledge themselves that such a quieting measure was meant to be carried into execution, for his part, he was one that would, on the present very critical occasion, prefer a Bill of Indemnity to a vote of censure on the advisers of the measure. The arguments urged by the noble Earl who moved the previous question, and by the other noble Earl who supported him in opinion, afforded matter of equal surprise and alarm. Their Lordships say, the only security the people of England have against being governed by a standing army, is the Bill of Rights: that the Bill of Rights only applies in such instances, and to such particular purposes. What, then, said his Lordship, is the glorious Revolution, the only sure foundation of all our liberties, the Bill of Rights, the compact entered into between the contracting parties at that glorious period, as well as the acknowledged sense in which this modern Magna Charter has been received for nearly a century, to be at once done away by distinctions, divisions, and explanations, directly repugnant to the intentions of its original framers, to the spirit, to the letter, nay, to both the legal and constitutional construction? I was willing to make every reasonable allowance; to grant something for expediency, more for necessity; in short, I was willing to accede to the propriety of anything, or everything, which might be urged in justification of the measure; but that it was legal, or constitutional, is a proposition I can never assent to; that is a doctrine, which, as an Englishman, I will never endure. Though a young man, I am old enough to remember the conduct of a great Minister, a steady friend to his country — I mean that of the Earl of Chatham — upon a similar occasion. His Lordship ventured to call it a similar occasion; yet he believed no noble Lord in the House, however sanguine for the present system of measures, would assert that the present urgency carne up to the one he was going to mention. It was in the very heat of the war, when we required the men necessary to recruit our navy and army on an average from fifteen

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to twenty thousand men annually, that that great statesman, seeing, and very sensibly feeling, the necessity of having recourse to foreign levies, resolved to raise a certain number of foreigners to be employed in the American war. His Lordship accordingly raised a German regiment, to consist of four battalions; but how did he carry this measure into execution? Why, in the midst of a war, the widest in its extent, most interesting in its consequences, the greatest in its immediate importance, the heaviest" in point of expense; when our coasts were daily expected to be invaded by our natural, dangerous, and inveterate enemies; while the war even in America was yet doubtful, if not unpropitious, the Earl of Chatham, instead of pleading the great, strong, and justifiable motives of necessity; instead of cavilling on this word, or commenting on that, in the full spirit of the Constitution, in the full spirit of an Englishman, came to Parliament, to obtain its sanction. And so very careful was that great man, so tenacious of everything which might be construed into the most trifling invasion of the Act of Settlement, that he procured two remarkable clauses to be inserted in the act of Parliament, which enabled the Crown to take those Germans into pay: the first providing that those troops should serve in America only; the other, that none of the foreign officers should bear commissions higher than that of Lieutenant-Colonel.

The Earl of Effingham not only disapproved of the measure of bringing foreign troops into any part of the British dominions, but the employing them at all in the present contest with America. He enumerated several cogent reasons why he thought such a measure would be dangerous; but more particularly, when the operations of war would be of such a nature as to bring them into the empire, if not into the kingdom, alluding to the report of twenty thousand Russians being taken into British pay, either to make war in America, "or to defend this country against any attack that might be made by our foreign enemies near home. His Lordship next turned his thoughts to the motion; and after expatiating on its dangerous tendency and manifest illegality, animadverted on the danger of intrusting the care and protection of two such valuable fortresses to the care of aliens, who could never be supposed to be so warmly interested in their safety and defence as Englishmen, who, to the duty and prowess of soldiers, would always add the enthusiastick zeal of freemen and Englishmen, who felt themselves contending for nothing less than the trade, commerce, and naval power of their country. He alluded, as a corroborating circumstance of the care and attention which should always be paid by those who had the concerns of the kingdom under their direction, to this well-known fact, that the commanding officer at St˙ Roque had positive orders to seize and improve every possible advantage, either by stratagem, open force, or surprise, for the recovery of Gibraltar.

The Duke of Grafton said, he was too conversant in business, and too well acquainted with the necessity of secrecy, to wish for any communications from his Majesty' s servants, which might subject the persons or properties of those who gave, and perhaps continue to give, the necessary informations on which plans of either hostility or concession may be formed. He still had it less in his thoughts to press the noble Earl, [Earl of Rockford,] who so pointedly animadverted on his charge of criminal silence, to declare what were the specifick operations meant to be adopted: nothing was further from his thoughts; for that was not the species of information he wanted. He had heard it generally reported, that the noble Lord who has the conduct of the national business in the other House, informed that House, it was intended to augment our military force to seventy thousand men, and a proportionable naval establishment; or, as it was reported, to the utmost extent; in short, to strain every nerve in support of this very favourite war. A silence, therefore, on this subject, while general measures of coercion are so warmly recommended, is what I call criminal. We are hurrying precipitately into measures of great extent and deep importance, without a ray of light to direct us in our progress. We shall sit here and argue, day after day, on the measures proposed, one by one, to our consideration, while we remain totally ignorant of the facts, by which alone we can be enabled to judge whether we are acting right or wrong. We neither know the forces which are to resist us, their numbers, discipline, or resources. On

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the other hand, we are as ill informed of the force we mean to employ against those people, — whether they are in part to consist of foreigners; what is generally understood will be our probable expenses; how the necessary supplies to carry on such an unnatural war are to be raised. On the whole, we are totally ignorant of every single point necessary to the proper determination of matters of such weighty consideration, points which might lead us to balance the expenses, the inconveniences, the hazards of such an arduous undertaking against the claims of America; and on the whole to coolly decide whether it would not be more wise, just, expedient, and magnanimous, to adopt conciliatory than coercive measures. It is only by such a mode of proceeding, I am satisfied, it can be worth your Lordships while to attend to your duty in this House, with honour to yourselves or benefit to the nation. His Grace closed this explanation by saying, that by nothing he had offered did he, in the least, wish to abridge the royal prerogative or authority of the Crown; on the contrary, he always was, and would continue, to carefully watch, as far as in him lay, any encroachments on either side. The present power of introducing foreigners was, in his opinion, not a power legally inherent in the Crown; he should therefore oppose it as zealously as he would any which tended directly or indirectly to strip it of any of its just rights.

Viscount Weymouth contended, that neither the letter nor spirit of the Bill of Rights was in any degree invaded by the passage in the King' s Speech alluded to this day; much less violated. What, said his Lordship, are the words of that law? That no standing army shall be kept on foot, without the consent of Parliament, in time of peace, within this kingdom. What is the spirit and intention of this provision? Certainly that no army shall be kept up, without the consent of Parliament, at any time. I will appeal to any noble Lord, on either side of the House, if this be not perfectly consonant both to the letter and spirit of the act. Is it pretended that there is any such thing intended on the present occasion? In times of most urgent necessity, during the recess of Parliament, a body of troops is called for, by a particular exigency, arising during the recess. His Majesty, as Elector of Hanover, urged by the most gracious motives, offers the wanted aid in one capacity, and accepts of it in another. Does such an act as this encroach on or defeat the Bill of Rights? Does it assert that any such power is inherent in the Crown? On the contrary, does it not impliedly assert the very reverse, by submitting the measure itself to the judgment of Parliament? As to the legality, I will confess fairly that I think the measure every way unexceptionable. The law annexes these two positive conditions: "within the kingdom," and in "time of peace." Is there a noble Lord present, who will gravely assert, that the word "kingdom" here means all the dependencies and possessions of the Crown of England? Or, if then; be, is there a second Lord, who will after, seriously contend, that the present is such a time of peace as ties up the hands of the Sovereign from exerting those powers intrusted to him for the protection of every part of his dominions? If there be, I must fairly confess, that the law, thus construed, would be productive in some particular instances, not at all exceeding the bounds of probability, of evils, if possible, much more fatal to the safety of this empire than any imputed to the measure now so loudly condemned. The noble Lord who spoke last, informs us, that there is a constant standing instruction to the commandant of the Spanish lines to be upon the look-out, and whenever an opportunity offers, either by surprise, stratagem, or the known weakness of the garrison of Gibraltar, to seize and improve it, so as, if possible, to regain the possession of that important fortress. Now, for my part, this piece of information, if to be depended on, operates upon me in a very different manner from what it has on the noble Lord who imparted it; for it strengthens me still more in my opinion relative to the propriety of the measure; because it shows how necessary it is to take care that Gibraltar should, at all times, be garrisoned in such a manner as to defeat any attempt there might be made on it, in pursuance of this general military instruction.

His Lordship then turned his attention to the Bill of Indemnity which had been so often mentioned in the course of the debate; A noble Duke, who spoke early, had expressed his surprise that any noble Lord in Administration could raise a single objection to a bill of indemnity; but he

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begged leave to remind his Grace, and call to the recollection of the House, the conduct of some other noble Lords, when a bill of indemnity was offered, and at length forced on them, in the year 1766, for stopping up the ports, to prevent the exportation of corn. Then his Majesty was made to justify the act of suspending an act of Parliament, by the mere virtue of his Royal authority; then it was, that one noble Lord said, in mitigation of such a gross violation of the Constitution and the laws, that at most the proclamation was but a forty days' tyranny; it was then that another noble Earl, [Chatham,] who was at that particular period supposed to have the conduct of the affairs of this country, argued strenuously against the propriety or necessity of the bill, though he at length consented to it; and it was then another noble Lord [Camden] high in office, contended, to the very last, that the measure was justifiable, and refused to concur in a vote for its passing.

The Earl of Dartmouth confessed, that he had been one of the advisers of the measure for sending Hanoverian troops to take possession of Gibraltar and Minorca. He denied any or the least intention of bringing the Russians into Great Britain, nor was it, he said, determined to employ them in any manner; at the same time, if a necessity should arise, which he hoped would not, he could discover no impropriety in employing them in the manner in which they might be rendered most capable of carrying into execution the measures which the wisdom of Parliament might deem necessary, in pursuit of the just exertion of its constitutional claims directed to the general interests of the empire.

Lord Camden pressed the illegality of the measure which the noble Lords in office had so fully and repeatedly avowed their having advised. He said it was not necessary, in order to decide on a question of such high importance, to send for a lawyer from Westminster-Hall, and produce him at their Lordships' bar, with a label in his mouth, to declare what was the law of the land; for the law now under consideration, he contended, was of a very different nature, and would admit in its interpretation of very few of the distinctions and technical modes of exposition, which were found necessary to come at the true construction of a matter of mere law; yet even on that ground, if the question was to be solely determined on it, he had not a single doubt but he should be able, against its warmest adversaries, whether in private or publick, to prove that it was one of the most clear and decisive points that ever had half an hour' s argument spent on it, or, indeed, the clearest which chance, ignorance, or obstinacy, ever brought into legal controversy. After elucidating in the most satisfactory manner, the literal and obvious meaning of the clause in the Bill of Rights; after adverting to the spirit of that law, as applying to the grievance which was then to be remedied; after pointing out the true construction of the letter and spirit united, as interpreted for a series of almost ninety years, and during the reigns of four Princes, besides the present, three of whom were foreigners, (no slight matter of consideration,) he drew this obvious conclusion, that no foreign troops could be brought into the dominions of the Crown of Great Britain, without the previous consent of Parliament. His Lordship observed, that distinctions had been made between a time of peace and a time of war; but he was certain, that neither the law nor any usage justified any such interpretation. It was true, that the word "foreigners" was not mentioned in the law; but would any one infer from that, that though it was not permitted to keep a standing army of natives, it might be wise, constitutional, and legal, to keep on foot a standing army of foreigners? He said he was ashamed to dwell on such puerile distinctions, were it not that such great stress seemed to have been laid on them by one or two Lords on the other side. He next entered into a view of the general question; and dwelt particularly upon two points. The first was, in relation to the charge made against him by the last noble Lord who spoke, relative to the Bill of Indemnity passed in 1766. His Lordship said, that he always understood it to be a received maxim in politicks, that the salus populi was the suprema lex; when, therefore, the then Lord Mayor of London informed the Privy Council that the crop of bread corn was extremely short, not much above a third of the annual consumption, that the calamity was universal and threatened all Europe, and that consequently every means would be used to drain the

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country of its scanty stock, so as by such means to threaten a famine, — he thought, for his part, and ever would continue to think so, that the maxim of salus populi suprema lex was never more applicable. It is true, it was against an act of Parliament, but he was still of opinion, with that great philosopher Mr˙ Locke, that there were cases of necessity, neither provided for nor foreseen, which fully justified a departure from the mere letter of the law. That was his opinion then; so much so, that he could never be prevailed on to think that he wanted a bill of indemnity, that he wanted a pardon, for concurring with the rest of his Majesty' s Ministers, in preventing the dreadful consequences of a famine, perhaps in saving the lives of some millions of his fellow-subjects. But what kind of affinity or similarity there was between the necessity of that day and the necessity of this, was what he could not possibly discover. Here it was only to give directions to have the troops ready to embark, to have the transports in the harbour, to assemble Parliament a few days earlier, and to procure a vote of both Houses, by which means every proposed end would be effectually answered. He doubted much if a single day would be lost, nay, he was convinced the whole might be managed in such a manner as to avoid the loss of a single hour. The other matter he dwelt on was, the consequences that were to be dreaded from the measures meant to be carried into execution. Those he feared would turn out to be exactly similar to what happened to the Athenians, in their contest with their Colonies planted in the Island of Sicily. They were a great maritime nation, they planted Colonies, they increased their riches, power and maritime strength by this plantation; they grew at length mighty and Overbearing, tyrannical to their dependencies, and jealous of liberty in any part of the Athenian dominions, beyond the confines of Attica. They had triumphed over their neighbours, the Republick of Sparta, who were in some measure to them what France is to us, their superior on land, and their continual rival in power and greatness. What was the consequence? Intoxicated with their increase of power and opulence, they began to oppress their Colonies; the Colonies took arms; four Generals of great note were sent from Athens to subdue them; the Athenians were defeated; more troops were sent, reinforcement followed reinforcement; at length they were totally expelled that Island; not a General, nor scarce a man, ever returned to relate the circumstances of their successive defeats. Thus, deprived of every foot of land they possessed in Sicily, and divided among themselves, they shortly after fell a prey to their ambitious and inveterate enemies, the Republick of Sparta.

The Earl of Denbigh insisted that it Was not the Ministry that deceived or misled that House; but it was a set of men in the country who flattered themselves they would be enabled thereby to force themselves into power and office. Unfortunately for both countries, those incendiaries had been too successful. It was, therefore, necessary to convince such men that they could draw no advantage from such arts; by which means those delusions would be dispelled by which the people of America had been unhappily misled; or if they should pertinaciously adhere to their errors, they must be convinced that no subject of the British empire can appeal to any other mode of decision, or be safe under any species of protection whatever, but such as the laws and Constitution afford. His Lordship entered fully into the construction of that paragraph in the Bill of Rights which immediately applied to the question before the House, and contended that that paragraph by no means reached the present case; for neither Gibraltar nor Minorca could be said to be described in the words "within the kingdom," that phrase manifestly having a retrospect to the very circumstance which made it necessary to declare the sense of the whole nation on the matter, namely: James II keeping up a standing army "in time of peace, within the kingdom, without the consent of Parliament."

The Duke of Richmond observed, that it was usual with the noble Lords in Administration, when they found themselves pressed in argument, to fly for sanctuary to their usual topick of imputing factious motives to their antagonists. Such a conduct answered one end: that of drawing off the attention of their Lordships from the question. But it was, however, not without its advantages in a contrary direction; for it showed the dispassionate part of the House that the argument on every true, sound, relative ground,

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was against them — was tacitly deserted — when Ministers and their avowed supporters were obliged to have recourse to such flimsy aids, of keeping up a conversation when the point in debate had been virtually, nay, actually deserted. His Grace observed, that several noble Lords had taken it for granted that hiring foreigners was frequently practised since the Revolution; nay, sometimes they had been brought into the kingdom without the previous consent of Parliament. How far this general assertion might apply, he would not pretend to determine; but this he would venture to assert, that foreigners were never, upon any pretence, brought into this kingdom without the consent of Parliament, either by treaty or address. It has been said, early in the debate, that the Hessians had been brought over in 1745, without any previous Parliamentary communication; but nothing could be more erroneous; for though they were not called over by an express act of Parliament, either then or in 1756, both Houses consented to it by an address to the Throne, in one instance; and where that sanction was wanting, by some existing treaty ratified by Parliament. As to taking foreign troops into British pay, and afterwards prevailing on Parliament to ratify such engagements, that did not come up to the present point. But even allowing that to be the case, some of the noble Lords, and many of the descendants of others of them, differed widely upon the subject in the year 1742, when a body of Hanoverians was taken into British pay, and afterwards the Minister came to Parliament to make good the engagement. On that occasion there was a very remarkable and spirited protest entered on the journals.

[Here his Grace, after reading part of the Protest, read several of the names; among which were those of the Keeper of the Privy Seal, Talbot, and several others.]

His Grace went fully into the question, and closed his observations with this argument: The noble Lords on the other side insist that it is competent to the King to raise and keep an army in time of war or rebellion, in any part of his dominions, previous to the consent of Parliament; that the paragraph in the Bill of Rights makes no distinction between an army of natives and foreigners; and that there is at present a rebellion in America. Now, I will draw my conclusion as an inevitable consequence from these premises: that the King of Great Britain may now, or at any future time, introduce into this kingdom directly, either in time of war, or when there is a rebellion in any part of this vast empire, any number of foreign mercenaries he pleases, without consent of Parliament.

Lord-Chancellor Bathurst, deserting what he called the quibbles of Westminster-Hall, and the subtle distinctions of lawyers, allowed that the fortresses of Gibraltar and Port-Mahon were fairly within the spirit and meaning of the paragraph of the Act of Settlement; and that in the same sense, too, he understood it applied to foreigners; but to neither in the manner now contended for by the noble Lord who supported the motion; for if those fortresses came within the description of "within the kingdom," so did America — consequently, America being now in rebellion, the operation of the Bill of Rights law must cease till peace be restored; and, on that ground, the measure of sending the Hanoverian troops to Gibraltar and Minorca was perfectly justifiable. His Lordship declared that, with the rest of the Cabinet Ministers, he had assisted in advising the measure.

Earl Gower made the same declaration, and entered into the consideration of American affairs. He said it was strongly insisted on the other side that we should never be able to coerce America. He was sure we should: that was a fair argument. The noble Duke who spoke last but one, had read a long list of names, supposing that the sons and descendants of the noble Lords who signed that protest ought to, inherit the same political sentiments with their titles and fortunes; but he perceived the noble Duke' s father' s name was not among the protestors, and that his principles, of course, were very different from his son' s: and that was another fair argument. His Lordship defended the whole of the measures ingrafted on the King' s Speech.

The Earl of Shelburne (Lord Wycombe) said: The Bill of Rights is declaratory. It supposes a law which can be found in no written book or statute whatever. It can only be looked for by recurring to its principle. The only principle that can be suggested is, the danger to be apprehended

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by keeping a standing force without the consent of Parliament. To do this within the limits of the kingdom, and in time of peace, is more dangerous, and carries with it less colour of necessity. To do the same in Ireland, Gibraltar, or any of the dependencies of the kingdom, may be less dangerous; but will any man say there is no danger? If there be danger, the difference of the degree can make no change in the principle, nor in the law founded on it. It may be asked, why was it not declared in this extent in the Bill of Rights? The letter of the law and the, history of it give the answer. The Parliament was satisfied that King James had raised or kept a force within the kingdom in time of peace; and their declaration of the law was naturally commensurate to his violation of it. It must be a strange interpretation of that declaration, to infer from it that a conduct on the part of the Crown, which, under such aggravating circumstances, was highly dangerous as well as illegal, could, in a case where the danger differs only in the degree, be perfectly legal and innocent.

The previous question was then put, "Whether the said question shall be now put?"

It was resolved in the negative: Contents, 31; Proxy, 1. Non-contents, 53; Proxies, 22.

Ordered, That an humble Address be presented to his Majesty, to desire "that his Majesty would be graciously pleased to give orders that there be laid before this House a copy of a Paper intituled ‘A Petition of the Congress of several Provinces in North-America to his Majesty,’ presented to the Earl of Dartmouth in December last."