Nov. 3d. Upon thefe, or fimilar grounds, Sir James Lowther made a motion, That the introducing the Hanoverian troops into any part of the dominions belonging to the crown of Great Britain, without the confent of parliament first had and obtained, is contrary to law. The minifter, to guard against the effects of this motion, and to detach the country gentlemen entirely from it, had his bill of indemnity framed with great dispatch, and brought in upon that very morning.

As this motion went directly home to the question of law, the charge in that refpect was ftrongly fupported, and befides the general illegalities which we have already feen attributed to the measure in queftion, whether with respect to the general law of the realm, or the Bill of Rights in particular, it was now affirmed to be directly contrary to that claufe in the Act of Settlement, which fpecially enacts, That no perfon born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereto belonging, (although he be naturalized, or made a denizen,) except fuch as are born of English parents, fhall be capable to enjoy any office, or place of truft, civil or military.

The application of a claufe which left fo little room for doubt or mistake, was not difficult. It was asked, whether the poffeffion of Gibraltar and Minorca, were not military trufts of the highest nature? Whether the crown could legally commit these trufts to the officers of France or Spain? Was there any distinction in point of law, which rendered it more legal to commit the keys of the empire VOL. XIX. 1776.

to the cuftody of Hanoverians than Spaniards? The troops of Hanover are as diftinct from the troops of this country, as thofe of Ruffia. The King of Great Britain is also as diftinct from the Elector of Hanover in every political point of view, as he is from the remoteft fovereign in Christendom.

Several paffages in the Bill of Rights, and Annual Mutiny Act, were applied in further proof of the charge of illegality.

On the other fide, the ground of legality, with refpect to the laws which had paffed in confequence of the Revolution, not being found tenable, was quitted, and new taken. One of the law officers, and fome other gentlemen on the fame fide, advanced and infifted, that it was an indifputable prerogative inherent in the crown, to protect the public, which could not be done but by arms. That parliament had no means of controlling this prerogative, and preventing any mischievous confequences, but by withholding the fupplies which were neceffary for the fupport of armies. That this prerogativc was coeval with the inherent right in the crown of making peace and war, which would not only be nugatory, but an abfolute mockery without it; and that it was fupported by unin terrupted ufage, the conftant exercife of the right, from the earliest period of our monarchy to the Revolution. That the Bill of Rights created no new law; it only afferted ancient ufage, by way of declaration; confequently, instead of militating with this inherent prerogative, it confirms it, if that were wanting; as whatever then appeared to be the ancient usage, [F]

muft

muft ftill continue to be the law. It damns and reprobates fuch armies, and in fuch circumftances, as could not be juftified by fuch uniform unqueftioned ufage; but no others; and whilft it fecares the conftitution, it does not weaken the defence of the kingdom. What was the militia, before the new regulation? It was an army, the command of which was unqueftionably and folely in the crown, and fo declared to be by act of parliament.

That, if there could be any difference of opinion with respect to the prerogative, in the extent now laid down, ftill there could not be a colour of objection, with regard to the measure now attempted to be cenfured; for, however the general right of the crown might be difputed, the particular right of placing garrifons in the King's fortreffes, whether within or without the realm, had never been queftioned, even in times of the greatest popular licentioufnefs. In fupport of this pofition, inftances were given of the garrifon kept in Calais for above two hundred years, and of that at Tangier, during the greater part of the reign of Charles the Second, in neither of which, was parliament ever confulted, or did it ever pretend to interfere; at home, the inftances were more numerous, and in the fame predicament; which the garrifons formerly maintained, in Newcastle, Berwick, Portsmouth, the Marches, and Cinque Ports, were brought in proof. All danger from fuch garrifons to the conftitution is guarded by the clear line that is drawn. For the moment the troops quit the garrifon towns, or are kept up in any other manner than bona fide

for

for that garrifon ufe, they become illegal; and those who thus keep up or employ them, are answerable with their heads for the abuse.

Thefe arguments, instead of satisfying the oppofition, gave them new ground of complaint. They denied the legal force of any ufage contrary to the established principles of the conftitution. Otherwise all ancient arbitrary proceedings, for which there were but too many precedents, would become foundations for our laws. They said, that the ancient, armies of the crown, were compofed of those who ferved by virtue of their tenure, for a limited time, and for particular fervices; to which the King was intitled in common with the inferior Lords, in right of property and tenure. That from the abolition of the military tenures, the crown had no conftitutional military force whatever, except what was granted by parliament. That an army was a thing totally different from the occafional call on the fubject for his own defence against an actual invasion. The legal power of the crown, however, with regard to the militia, was by no means clear, until an act was formed for that purpose, though there was no doubt made as to the fupreme command, whenever it was legally called forth and acted. That the ancient garrifons were by tenures and caftle guard as other services were, and did no way refemble regular troops. They laughed at what they called the new diftinction of garrifons, which might legally form a military chain about the extremities of the kingdom, and were to be held there by words. If any army could be kept there by prerogative, they

would

would not ask leave of law to enlarge their quarters.

As to the precedent with refpect to foreign garrifons, it was obferved, that Calais was the laft remnant of thofe vaft poffeffions which our kings held of their own right in France; that they claimed the crown and the whole kingdom by lineal defcent; and that, confequently, the English parliament had no more to do with the King's government of France, than they have now with his government of Hanover. As to Dunkirk and Tangier, Charles the Second, who kept garrifons in thofe places, maintained an army within the kingdom contrary to law. It was one of those great and dangerous infractions of the conftitution, which the Revolution was intended to cure. He alfo fold Dunkirk to France. Will that now be drawn into precedent?

Notwithstanding the firmness with which the crown lawyers and minifters defended in debate a very qualified fenfe of the words in the declaration of rights, and of courfe a very high, and not very clearly defined prerogative in the crown, with regard to garrifons and armies, they did not however think proper to give it a further fanction and confirmation, by putting a direct negative upon the motion, which would have been tantamount to a refolution, and confequently establish the doctrine in debate, fo far as that house was capable. Inftead of this, the previous question was put, and the motion, accordingly, indirectly loft, by a majority of 203, to 81, by whom it was fupported. Thus was this great queftion, of no fmall legal and conftitutional im

portance, left open and undecided, to be perhaps refumed at fome fu. ture period.

A new militia bill having been brought in, in confequence of a paffage which we have already feen in the fpeech from the throne, confiderable debates arofe upon the fecond reading of it, which happened on the day preceding the motion we have juft mentioned. The principal objection made to this bill, was the prodigious additional power with which it armed the crown, the King being enabled by it to draw out the militia, in cafe of a rebellion in any part of the empire. This was faid to be, in fact, empowering the crown to draw the militia out whenever it thought fit, as a pretence could never be wanting for the purpose, while there was a black Carib remaining in St. Vincent's, a runaway Negro in the mountains of Jamaica, or a Hindoo Rajah left on the coaft of Coromandel.

The bill was faid to be entirely fubverfive of every idea of a conftitutional militia, which should be merely local, and calculated only for internal and domeftic defence. That the prefent militia was formed under the exprefs condition of not being called out, except in cafes of invafion, rebellion, or an imminent danger of either, in the kingdom; but by this bill, it is in the power of a minifter tó embody the militia whenever he pleases; and as they are then immediately within the Mutiny Act, they are to all intents and purpofes, whether they will or no, converted at once into a regular ftanding army.

It was urged with great severity, [F] 2

that

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that this bill was rounding and compleating that fyftem which had for fome years been uniformly pur. fued, of rendering the crown totally independent of the people, and placing them naked and defencelefs in its power: In fupport of this affertion, befides the general inftances, of the great increafe of our military peace eftablishment both by fea and land, and the continually growing and dangerous influence obtained by multiplying places and penfions, were reckoned, the great weight thrown into the preponderating fcale of the crown, by the Royal Marriage Bill; the inordinate power obtained by a violation of all the rights of the Eaft-India company; the violent attempt of extending the prerogative to the levying of money upon the fubject by proclamation, in the cafe of the four and half per cent. in the Weft Indies, which, notwithstanding every poffible obftacle thrown in the way of juftice, has at length been condemned by our courts of law; with the further breaches in our old form of government, and the unufual powers granted by the Quebec Act, and the Bofton Port Bill; and the defign to overawe us into a fubmiffion to any meafures, by the introduction of a foreign force. They faid, that every meafure adopted, and every incident which occurred in the prefent troubles, whether favourable or unfavourable to government, was converted to the furtherance of that defign. And that adminiftration was now evidently taking advantage from the fituation of public affairs, to bring the people by the present bill under martial law, and to add that law to the prerogative.

They concluded, that no perfon who attentively confidered the quick fucceffion of these measures within fo fhort a period, could have a doubt remaining concerning their defign.

On the other fide, all thofe dangers to the conftitution which it was fuppofed might arife from the bill, and the evil purposes to which it might be applied, were reprefented as purely chimerical, and as impoffible in the nature of things ever to be realized. What minifter would run the rifque of his head by calling out the militia of England, under the pretext of a riot in Bengal, or a disturbance in any other remote part of the King's dominions? Muft he not face parliament to account for his conduct? Would the trifling caufes which have been fuppofed, be accepted as a juftification, for exciting fuch an alarm, and caufing fuch expence and trouble to the nation? An impeachment must be the inevitable confequence, and the alternative of a mad-house, or a fcaffold, the final refult, in cafe of a conduct fo replete with folly and danger. That poffible abuses were no arguments against neceffary powers; but that the abufes here predicted were scarcely within poffibility.

A militia was the great conftitutional defence of a free country. It had always been called for in oppofition to a ftanding army, by the most celebrated patriots; by thofe who were the most jealous of the powers of the crown, and the moit zealous fticklers for the rights of the people. As there was a neceffity in a great national conteft, of fending the regular forces abroad to fupport the rights

of

of the crown, and of the people, fome mode of home fecurity and defence must be adopted in their abfence. What other could have been found fo proper, and fo conftitutional as the prefent? Would thofe who ftigmatize the measure of fending a few battalions of Hanoverians (who though foreigners, are the King's fubjects, and of course our natural friends) to ftrengthen the garrifons of Gibraltar and Minorca, would they recommend the introduction of foreigners into England, or would they wish, that our ports, our docks, the capital, and the kingdom itself, fhould be open to the enterprize, and fubject to the mercy, of any infidious enemy that might chufe to take an advantage of our defencelefs fituation? Could any thing be more pleafing to Englifhmen, than that the defence of their country fhould rest upon themselves only? Or could his Majefty give a more ftriking in

ftance of the unbounded confidence which he placed in their zeal, affection, and loyalty, than by repofing the protection of his crown, perfon, and kingdom, in the gentlemen of England?

This debate was by degrees drawn off from the main fubject to that of the late addreffes to the throne ; a matter which had been continually agitated fince the opening of the feffion, and which now produced more warm animadverfion, and pointed altercation, than any other which occurred in its courfe. Befides the general cenfure which the oppofition paffed upon these pieces of minifterial craft and manufacture, (which they affected to call and confider them,) for the indecency and fcurrility of

their language, the falsehood of their charges, and the dangerous tendency of their implications and threats, an address from the first battalion of Devonshire militia, in which they made a tender of their perfonal fervice against all internal enemies, afforded an opportunity of bringing the matter home to the prefent queftion, by fhewing the danger of intrufting the sword to a militia upon the new conftruction, when a part even of the old, which feemed more immediately in the hands of the people, was fo managed, as wantonly to propofe its application to the most fatal purposes.

That thofe who were entrusted with arms by the conftitution for purposes of national defence, were to use them only in the manner prefcribed, and under the powers ordained by that authority. They were, as a militia, to hold no opinion as to time or place, fitness or neceffity; they were to obey the orders which they received, not to fay what those orders fhould be; they were to fecond and fupport the execution of the law, not to declare what was the law; much less to dictate in great political and legislative questions. Thefe gentlemen, they faid, come uncalled, with drawn fwords in their hands to make a tender of them; against whom are thefe fwords to be employed? not against the natural enemies of this country, nor even against their unfortunate fellow-fubjects in America; but against internal enemies; that is, againft all thofe throughout the kingdom, who happen to differ with them in political opinion; and more immediately and particularly against thofe gentlemen,

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who