lord G. Germain. He would therefore recommend it to the hon. member to suspend his motion till Tuesday next.

will render any support my abilities can give it useless and unnecessary. It is sufficient for me, that I feel myself actuated by an honest zeal (for honest I will call it) for the salvation of my country, in these times of the most dangerous experiments; it is to your lordships' better understandings, that I must submit. On this ground then, my lords, and because I hold it to be the privilege of every noble lord to call for the advice of the judges in point of law, I shall presume to move, "That a day be fixed for summoning the Judges to attend this House, in order to take their opinions upon the present mode of raising Troops, without the authority of parliament."

Mr. Fox rose to explain the imputation of meaning something treasonable by his allusion to the government of king James. This he would maintain, that whosoever attempted to act contrary to the constitution, could be no friend to it; that an attempt to tax three million of people, without their own consent, was unconstitutional; and that as king James had been deposed for exercising power not his own, so this country had been deposed from its natural dominion over America for usurping a power denied by the constitution. As for the motion, he would not have it thought that he wanted to take any advan-ral grounds, to the informality of the motage of the noble lord's absence, and was willing to withdraw his motion for that evening, and make it on Tuesday.

The Lord Chancellor objected on seve

tion. He said, no instance was recorded in parliament of any such motion being received. That the judges had no voice in that House, nor were ever present in Debate in the Lords on the Earl of debate; nor at any other time, in the Abingdon's Motion respecting the Legality manner now attempted, unless specially of raising Troops by private Aids without called upon. That when they were called Consent of Parliament.] Jan. 23. The upon, it was to decide upon matters of Earl of Abingdon said: Having a motion mere law, and upon questions previously of very great importance to make, I think framed; which questions were supposed it necessary to apprize your lordships of it. to arise from facts already proved to the I am greatly alarmed at the spirit that is satisfaction of the House. Was that the gone abroad, and at the countenance given case now? Was there any fact whatever to that spirit, of raising, out of the medium stated to the House, on which a question of parliament, armies in Great Britain, by of law could arise? Not one, nor one personal interest and private subscriptions. even suggested. On this ground of inforIt is therefore my intention, in the course mality, he contended that the motion was of a few days, to move, that a day be ap- highly improper; nor could it be enterpointed for summoning the Judges to attained for an instant conformably to the tend this House, in order that their Opi- established usage of parliament. His lordnions may be taken upon this matter. At ship then said the annual Act passed every present, I conceive it to be not only re- session, called the Mutiny Act, became pugnant to the principles of the constitu- necessary; because in time of peace, no tion, but expressly against the letter of the standing army could be kept up within the law. Perhaps I am mistaken; if I am, kingdom, without the consent of parliament. and this mode of arming the nation be The last Act empowered his Majesty to right, I too will exert my interest for the raise 20,000 men. In that view of the purpose of raising a regiment; not, my question, if it should come out in proof, lords, to go to America, to be hazarded, which was a fact within his own knowledge, perhaps devoted, but to remain in England that including the levies made during the to assist in protecting our liberties. If I recess, the whole of the troops within the am not mistaken, I shall trust that these kingdom did not amount to 20,000 men; violent measures will be immediately sup- then the measure, to which the motion was pressed. He then moved that their lord- directed, was perfectly justifiable; for the ships be summoned on the 27th instant; Mutiny Act had been literally and rigidly which was agreed to. complied with. Besides, though the matter had not been just as he stated it, the House could not properly take cognizance of the affair. He understood, a noble lord in the other House who presided over the war department, had already delivered in estimates of troops proposed to be raised;

Jan. 27. The Earl of Abingdon. Being now assembled, in consequence of the notice I gave your lordships of my intention to make a motion to this House, I think, that the high importance of the motion itself,

therefore, though the number should exceed 20,000 men, the embodying and regimenting of them would not take place till the measure had received a parliamentary sanction. If recruiting parties had been out, or men had been proposed to be raised, it was usual every day; preparations in the recruiting service were necessary, because it was not the very instant men were wanted for actual service that they were recruited. He concluded with saying, that the Bill of Rights declared, that to keep a standing army within the kingdom, in time of peace, was contrary to law; but the present not being a time of peace, that provision did not apply. He wished the noble earl would withdraw his motion.

sultation, and advice, was an act little short of superseding its authority, and stripping it of its rights.

The Earl of Effingham disapproved of withdrawing the motion; said he would be better pleased to meet the negative directly, than have the question, after full notice given, postponed. If administration meant to oppose it, they, it might be presumed, would not change their intentions, in the space of a few days. His lordship being reminded, that the motion was already withdrawn, insisted nevertheless, as a peer of parliament, on his right to give his sentiments upon every question introduced into that House.

The Duke of Richmond declared, that the judges were the attendants of the Lord Camden said, the motion well de- House, and entered into an investigation served their lordships' most serious atten- of the different import of the word attion, as it was, in point of constitutional tendance,' distinguished from the word effect, of a most serious and important assistance,' as used in the Journals of the nature. He begged leave to lay in his House; deducing from thence, an arguclaim thus early, to be understood that ment, that the judges, to whom the word the question did not lie within the very attendance' was always applied, in strict narrow limits which had been assigned to compliance with their duty, should give it by the noble lord on the woolsack. It daily attendance; but on account of their seemed to him most materially to affect other important avocations, that attendthe privileges of parliament. He had not ance was excused, and they were never yet digested his thoughts on the subject, expected to be present, unless specially but from its naked appearance and the summoned. His grace contended, that a arguments which came in support of it motion for the attendance of the judges, from the woolsack, the consequence of by any noble lord in his place, was a mothose arguments would lead, in his opinion, tion granted as a matter of course comto the utter subversion of the constitution. prized within the standing order of the On that ground, he could venture, in the House; and that it was contrary to parliafirst instance, to pledge himsel, that he mentary customs to refuse it. With rewould prove that no such power, under gard to the present motion, it was highly any pretence, could be exercised, without necessary that the judges' opinions should the previous consent of parliament. But be had. Government was flattered, asif there could, it would be the most irresisted, and supported by Jacobites, Tories, fragable argument with their lordships, he presumed, to do every thing which depended upon them, to apply a speedy and effectual remedy. He further contended, that the question was of the first magnitude, and called for the most ample and solemn discussion. The measure of raising troops, without the consent, and during the sitting of parliament, was not only illegal, and unconstitutional, but a high violation of the fundamental privileges of parliament. To judge of the necessitics of the state, in point of measures offensive or defensive, and to make provisions accordingly, was of the very essence of parliament; to take any measure therefore, while the parliament was in being, and of course in an active, and not passive state, without previous information, con[VOL. XIX.]

and Highlanders, who were now raising large levies of men, for the support of measures, which had proved to be exceedingly injurious to the interest and honour of Great Britain: that this was a new and a very alarming case; that therefore it was well worth the enquiry of their lordships, and if found to be illegal, deserved their most pointed and severe censure.

The Earl of Suffolk argued, that from what he knew of the present state of the army, and the necessity for having as many men as could possibly be collected, for the public service, the summoning the judges, for the purposes declared in the motion, would not appear expedient at this moment; and that he, for one, should put his negative upon it.

The Earl of Shelburne said, the national [28]

concerns were indeed in a very precious predicament, if, when modes of raising troops, altogether new, and apparently unconstitutional, were publicly practised, upon a lord of that House stating his doubts as to the legality of the manner of raising levies, their lordships were to be told by one of the King's servants of the inexpediency of attempting to solve those doubts, and on that ground only the attempt was to be frustrated; an attempt which went to an ascertainment, whether the constitution was or was not to be endangered. The earl declared, that he had arrived in town only the preceding evening, and had not found time sufficiently to investigate the subject; but that the noble earl had done him the honour to communicate his opinion to him, and that he clearly saw the noble earl meant to consider a grand constitutional point; that therefore he had attended: that he conceived the summoning the judges to be a motion of course, and although he was not willing to do the public so much disservice, as wantonly to sport with their property, by calling for the judges without occasion, he could not conceive that their attendance for one day would be a matter of great inconvenience, especially as he observed that the Chief Justice (before whom as much business came as before any one judge) found time to attend the business of the House pretty constantly, and scarcely ever failed when any question was to be put in the fate of which government was concerned. Not (said his lordship) that I think the Judges' opinion of such mighty consequence; few questions come before this House of which your lordships are not as competent to decide as the judges. In grand national points I shall never be directed by the opinion of lawyers, nor will I go to Westminster-Hall to enquire whether or not the constitution is in danger. I speak therefore now merely upon the rights and privileges of parliament.

Earl Gower objected to the withdrawing of the motion with a liberty to repeat it in the same words; therefore the noble earl had the option of now abiding by the question, as first put, or omitting that part of it relative to summoning the judges.

The Duke of Richmond said, that if the matter propounded to the judges, when they did attend, was improper, the House might put a negative upon it; but in the first instance he had always understood that such a motion was never refused.

The Earl of Marchmont said, the judges were never called upon by their lordships, but in two cases: one was in matters of right, pleaded at the bar; the other was relative to the legal construction of an act of parliament.

The Earl of Suffolk said, that the duties of the judges required their attendance in another place, and that if their presence was required here, it might be productive of the worst consequences.

The Duke of Richmond insisted, that during the sitting of parliament their proper place was on the woolsack; that they formed in some measure a part of the House; and that according to its rules and orders they were always supposed to be present. He said he would not admit of negative proofs, and called on the noble earl who spoke last but one, to produce a single precedent in which the request now made had been refused.

Earl Gower acknowledged, that two judges during the sitting of parliament were supposed to attend; but he understood, and never heard it disputed, that it lay in the breast of the House, and not in that of a single member, to enforce their attendance. The reason of the thing pointed out its propriety, because it was plain, what one noble lord might do another might; the consequence of which might be, that being called upon day after day, the public justice of the nation would stand still, and every thing would be thrown into confusion.

The Earl of Marchmont mentioned what he called a case in point. He informed their lordships that he was present in the House at the time a motion was made in 1737, relative to the great riot in Edinburgh, about captain Porteus, who was executed by the mob, in which a noble duke moved for the attendance of the Scotch Judges, relative to a point of law. The question was carried, but the Judges refused to attend, and the affair dropped. From this instance his lordship concluded, that though the Judges were ordered to attend, they might refuse to comply.

The Duke of Richmond again insisted, that the Judges formed a part of the House; and as a proof that they did, he had enquired of the clerk, who informed him, that there were writs always issued previous to every new parliament, requir ing their attendance; though they were not returned, like the peers' writs, into that House. As to the point of inconveniency, it was little; because, during the

terms, it was no great hardship upon the | tion of his vote and conduct, to call for Judges to slip up from Westminster-hall, their attendance to this end: but, my when the business of the courts of law were over. He had observed, that a noble lord (Mansfield) a peer of that House, and likewise one of the Judges, frequently attended in his place. When his absence could be dispensed with upon general as well as particular occasions, he presumed upon so vast and important a question as the present, neither the justice, nor legal business of the nation, would stand still. Since he was up, he begged leave to know from the noble lord, if the fact was as he had stated it, relative to the writs being issued out of that House, requiring the personal attendance of the Judges?