The Statesman. — London, England, 1815-03-01 00:00:00

The motion wa negatived. and the Bill ordered to be read a third time OD Monday. The Irish Excise License Bill was ordered to lie committed to-morrow. The Retort of the Committee on the several Export Bill. was ordered for to-toorriw. . The Committee respecting the South Sen Comptiny was or dered for tomorrow. In the Committee on the Mil respelling imported Citric of Lime the addition of Is. 6d. per posall was agreed to. The Bill to exempt Packet Boats from Harbour Dillies was read the 6rsi time; second time to-morrow. The Local Poor Amendment Bill was read the second time. To he committed to-morrow. ADMIRALTY DROITS, dtc. Mr. BENNETT noticed a sum of 9981. lately paid, and wished to know whether a public officer retained his situation after absconding from the country; also, whether the Chancellor of the Ex chequer would give any details to the House respect. ing a sum of 40001. paid to the Duke of York for entertainments given to his Royal Highness's bro. ther-in-law, the King of Prusssia ? He wished to know whether the First Lord of the Treasury had received any allowance for the entertainments he gave to the Royal Personages ?—[A laugh]. The CHANCELLOR of the EXCHEQUER spoke in a very low tone of voice : we understood him to say, that the individual had wished to retire from his situation ; but that some circumstances had prevented its being as yet filled up. As to the second question, his Royal Highness the Prince Regent had been pleased to older a grant to his illustrious brother the Duke of York ; but he was not aware that it was subject to any minute enquiry. The first Lord of the Treasury, he believed, had received no grant whatever for his entertainments.—[A laugh.] ORDER OF THE BATH. Mr. GORDON observed, that the new Order of the Bath was important in the view of the privileges it conferred on individuals. Was the House to ex pect any communication on the subject, and how were the expences, if any, to be defrayed ? The CHANCELLOR of the EXCHEQUER s•tid, that he had received no commands from the Prince Regent to make any communication to the House upon the subject. He was not aware of ad ditiattal expences. MILITIA. Sir S. ROMILLY.—No apology was due from him for bringing on this subject again, even if the matter had stood as it did before. Ile was justified by the importance of the subject : hut, in fact, it did not stand now as it did. On the former occa. sion, only five months had elapsed since the defini tive 'treaty of Peace in Europe, and the Negocia. lions at Ghent were still going on with, as it appear ed, from our pretensions, no great hopes of peace. Now, nine months had passed since the general peace of Europe; the Negociations at Ghent had happily terminated in peace, and there seemed little reason to apprehend the renewal of war. All that had passed, exemplified the doctrines that had been maintained on the former occasion. It was then said on the other side, that it remained with the Crown alone to decide when, and under what sir. cumstances, the Militia should be disbanded. Certain. ly some of the Militia regiments had been disbanded, but others were yet kept up, though there was no foreign war, nor any symptom of insurrection nr re. bellion at home. The extreme importance of this subject must hare forced itself on every Gentleman's mind. The hlilitia occasioned a very severe sacrifice on the part of the lower orders, by the exaction of personal service, their separation from their families and homes, the forcing them to follow a new line of life, and the depriving them of the advantages of the civil law, and compelling them to subject themselves to military law. To persons of opulence it was lit tle more than a pecuniary tax. These sacrifices should only be required by the exigencies of the State. Our predecessors had thought such imposi tions only justifiable in cases of immediate danger ; such as a threatened invasion, or an actual insurrec tion or rebellion. The Legislature had imposed on the Crown in this respect unusual restraints, by re quiring the publication of the grounds of the mea sure. The Proclamation must state what the occa sion is : and if Parliament be not sitting, it must be called for the express purpose of making the requi site communication to them. With all humility to v ards those whose opinions were better entitled to weight than his own, he must say, that at this mo ment, in these circumstances, it was contrary to law to require the Militia service ; and that that part of the Militia recently disbanded, had been up to the period of each disbanding illegally detained. It re quired not the knowledge of a profound lawyer, but merely a knowledge of the Constitution, and plain good sense, to understand a modern Act of Parliament involved in no technical difficulties.— Every County Member was as good a judge of it as the Crown Lawyers themselves. Before he proceed ed farther, he must protest against the consequences imputed to the doctrines he maintained, that the men, under such opinions, might have a right to quit their standards. But, though the conduct of Ministers in keeping the Militia embodied were grossly illegal, lie acknowledged that the men were bound to discharge their duties. lie desired to dis claim those alarming consequences which had been imputed to his arguments. Without going into the history of the Militia from the earliest times, he would merely state, that the King never had power to call for the personal services of his subjects except In cases of actual invasion and rebellion. The Act of Edward 111. declared, that no man should be. com pelled to go out of his county, unless when necessity required, and in case of strangers invading the coun try. The preamble of the Act of the 42d of the present King, chap. 90, stated, that it was of im portance to the internal defence of the realm, that the Militia should be embodied ; and the 111th sec tion enacted, that in all cases of actual invasion, or in danger thereof, or in case of insurrection or rebel lion, it should be lawful for his Majesty to draw out and embody the Militia. There was no declare. lion of the time when the Militia should be disem. bodied ; but the Legislature had thought proper to impose restraints on the prerogative of the Crown.-- It had been said, that the King having once called out this force, might afterwards keep it embodied during his pleasure ; ■nd the only answer which 111i nisters gave was, that they were responsible for their advice. lie maintained, however, that every low ought to be interpreted, not according to the strict letter, but agreeably to its true intent and mean ing. When all the causes of calaoo out the Militia ceased, there was no ground for keeping it embodied. —The Crown, no doubt, had great discretion in judging when those causes ceased ; but if it were clear to every man, that every cause had ceased, there was no longer any ground for the exercise of such discre tion. if Ministers would say, that there was any danger of invasion, or that there existed any rebel lion or insurtection in the country, they would then be justified in keeping this national force embodied ; but they could not pretend, that any of those cases ' , existed, for there was not the smallest danger of in vasion, and there had been scarcely a period in his • Majesty's reign hi which the country was more tran quil than at the present moment. He repeated, there ' fore, that it was not only a rule of law, but also a maxim of common sense, that cessanle cause!, tessat • Tech's. It . had been urged, however, that there was a construction of this law by usage; and that while a war continued the probability of invasion was to be inferred. But this construction could not be maintained ; for he defied his Majesty's advisers to produce an instance where the Militia had been kept embodied, except in time of actual war, and when the enemy threatened to invade our coasts.— At the conclusion of the last war, the Ministers of that day did not keep the Militia embodied. And yet, what were the circumstances under which that peace was made ? Did any man acquainted with the situation of the country think that it was likely to be of long duration ? Could it be forgotten, that the man who was then at the head of the French Go vernment, under the modest title of First Consul, , had made alliances with different Powers, and che trished the most inveterate hatred towards this coun try ! And yet, with the knowledge of all these • circumstances, within a fortnight after the news of the definitive Treaty of Peace having been signed had reached this country, the Secretary of War con sidered it expedient to bring in a law to augment the I Militia. The Noble Lord, in whose department this ' matter rested, was then at the head of the Adminis• tration ; but neither he, nor those who acted with him, dared. to give such interpretation to the law as they now thought proper to advance. ---At present they entertained a different opi nion ; and perhaps they thought that the exults tion which the last peace had produced, would be a good opportunity for imposing additional bur thefts on the people, 'and calling on them to make fresh sacrifices. Ile did not know whether they en -1 tertained such notions, but this he would say, that 1 till the present period his Majesty's Ministers had never ventured to give such construction to the law. IHe had seen the opinions of the Crown Lawyers, which were avowed by Ministers, and said to speak 1 their language. Ile must beg leave, however, to I call the attention of the House to the subject of pub ! fishing the law of the land by the opinion of the Law ' Officers. This, he contended, was quite a new . practice; and he would add, that the opinions of his Majesty's Attorney , and Solicitor-General were not entitled to any more authority than those of any other two Barristers who had not the same adven ttage of the Royal favour. The opinions of such . persons would, indeed, be entitled to more conside ration, because they would not be given under any bias. But it appeared, that the opinions of the At ! torney and Solicitor-General were to be taken de -1 claratory of the law, mid that the Colonels of regi ments were to read them at the head of their men, in order to remove all doolos upon the subject. But what would the House think of this matter ? Ile would refer to the case of raising ship-money under the reign of Charles I. Did they suppose, that if the opinion of Sir John Finch, who was then At. i torney-Genera!, had been taken on that measure, I that it would have been satisfactory to the nation ? I It was extremely improper, that the law should be ! received, not from the Judges, but from those who were to act the part of advocates for the Crown.— He was well aware that these opinions came with more weight to the country, since they werb the opinions not of the Attorney and So!icitor-General only, but also of the Chief Justice of Chester— I [[leer!]—who might have to decide on this very law ' in his judicial character. It was therefore the opinion I of a Judge, given at the instance of his Majesty's Ministers.-111ear, hear!]—But how had those Ali . nisters acted ? They had first taken their measures and then asked for advice; they had kept the Militia embodied, and then enquired whether they were im peachable for what they had done ? Could any man i suppose that they would not take great pains to pro. cure an opinion favourable to themselves? With re- I spect to the opinion of the Chief Justice of Chester, he would repeat, that it ought not to have been given, since a Judge ought not to give au opinion 1 till he had heard the whole matter in dispute, and attended to the arguments of the contending parties. I But the circular letter from the Secretary of State to the Colonels of Militia said, that some doubts having Ibeen expressed as to the legality of keeping the militia embodied, the question had been referred to the Attorney and Solicitor-General, and the law being thus ascertained, the Colonels were to read it at the head of their regiments, for the purpose of sa -1 tisfying the minds of their men. The two first lion; of that answer were, however, not a little remark. ! lable. "We have had the honour," said the Att or .l ney and Solicitor-General, " to receive your Lord. , ship's letter of yesterday's date.:' Now lie thought, ! I that it would have been proper to take more time I I than twenty-four hours to l oo k i n t o th e o ld l aw upon the subject, and to ascertain the extent of the I prerogative of the Crown. The question which Mi nisters had asked was, whether it was imperative on the Crown, under any circumstances, to disembody the militia ? and the opinion said, there was nothing imperative in the Act; that there was a discretion in his Majesty's Ministers, subject to responsibility, if 1 they advised the Crown to conti n ue the militi a ern ! bodied improperly, when the circumstances of the country did not make it expedient. We had often heard of necessity being urged in defence of an ille gal measure : but that was the tyrant's plea ; and therefore, instead of necessity, we had here the word 1 expediency; so that as lo n g a s Mi n i s t ers s h ou ld think it expedient to detain men from their families, iand subject them to all the severities of martial law, there was no remedy but the responsibility of the ad visers of the Crown. But was this a sufficient answer Ito the people ? In what time, he asked, i n w hat `country, under what arbitrary Government, were not Ministers responsible? Was it because Ministers were said to be responsible ; that the militia were to be THE STATESMAN. kept out, m hen they ought to be disembodied ? Should the security of our liberties depend on what Ministers might them expedient ?—Our ancestors, whose wisdom had been the theme•of such frequent panegyrics in that House, had thought proper to im pose restraints on the Prerogative of the Crown ; but the Attorney and Solicitor-General said, that as long as any part of the militia remained embodied, Ministers might call out again such part as had been discharged. There need be no danger of invasion, uo rebellion, no insurrection ; it depended only on the discretion of the Crown. Let the House con sider what might he the consequence of this prece dent in after times. If Gentlemen complained of the conduct of Ministers on this occasion, it was said, that they were exciting discontents ; but if they remained silent, it would afterwards be al leged, that they acquiesced in such proceedings.—lt had been stated,that there were two Acts of Parliament relative to the Local Militia, which would assist in exposing tine meaning of this law. Those Acts had fixed a period for disembodying the militia ; and, therefore-, it was said, that because no time had been limited In the particular Act in question, it remained in the discretion of the King to disembody the mi litia at his pleasure. But what inference was to be drawn from those Acts ?—Did any person pay at tention to them when they were passed ?—Would it be said, then, that an Act of Parliament which un derwent no discussion, had settled all doubts upon the question ?—No possible inference could be de rived from such Acts, except that the. Local Militia was to be disembodied when the danger had ceased which had occasioned them to be called out. The simple question was, whether the cause of embody, Ing the militia had ceased ? Tile way in which Mi nisters had acted, must have a tendency to destroy all that was excellent in this species of force. He would ask, whether they could have devised more effectual means for that purpose, when a man who had accepted a commission for a limited time, was to be told that he must be continued during the plea. sure of his Majesty's Ministers ? But the hardships which this conduct imposed on the privates was much greater. On the higher classes of the community the 1 militia was nothing more than a tax ; but the lower orders, who had not the means of providing substi tutes, were detained from their families, and sub jected to military law against their wills. He could not approve of an expression of an Hon. Baronet, who was not then in the House, who had condemned the whole military law ; but the circumstance of his Majesty's subjects being exposed to that law, while they had not the consolation of thinking, that it was for the protection of the country and their families, operated very powerfully on his mind. They were now detained, not for the purpose of repelling inva sion—not to suppress insurrection or rebellion, but merely because contests were going on between ambi tious Princes, and Ministers thought proper to con tinue a large military force upon the Continent.— lie should therefore move a Resolution, "`That nine months having elapsed since a definitive Treaty of Peace was signed with France, and this country being now at • peace with all the world, and in a state of internal tranquillity, it was contrary to the Act of the 42d of Geo, 1 tl. c. 90, to continue any part of the militia etnhneied." Mr. BRAGGE BATHURST said, he was not surprised that the lion. and Learned Gentleman Ishould persist in the views he had formerly taken of this subject. He could not, however, but differ I materially from him. In the first place, the lion. and Learned Gentleman had stated, that the situ. ation of the country was not the same at this mo meet as when the question was before discussed.— No alteration, however, had taken place in the I I situation of the country ; for he (Mr. B.) considered, that the war with America was not at an end, until the Definitive Treaty of Peace was ratified. Till ! that period arrived, we must be at war with the United States, and continue our exertions. It had also been I thought necessary, with respect to our foreign re lations, to keep a large military force upon the Con tinent. The country, therefore, was precisely in the same situation. It was time,he said,that the Militia Act did not enable the Crown to call the militia together ' without a reason; but if the obvious meaning of Par liament was, that they should continue embodied no longer than the cause of calling them out continued, then it was utterly impossible that they should not have exercised the same caution, and expressed as much in precise words, which it was certain they had not done. Ministers, however, had not in this case acted merely upon their own responsibility; for did the Learned Gentleman know, that a sum was actually voted by Parliament before Christmas for the pay of the militia. Ile questioned very much whether the Hon. Gentleman knew this.—[ Yes, yes, from Sir S. RomiUy.]—Why then, here was Par- Bement, in November last, six months after the peace, noting a sum for the remaining militia, so that they were, in fact, continued under the sanction of Par liament. The* House had also negatived a former motion of the lion. Member, similar to the present. —The militia, therefore, had not been kept on foot, merely on some principles of expediency, fancifully exercised by the Crown, but Parliament bad sanctioned the measure from a sense of its ex pediency. He then adverted to the calling nut of the militia during the American war, in Lord Nnrin's Administration. The ground was the probable oc currence of a war with France, but that Noble Lord did not hesitate to state that the danger of in easion was a bugbear. In fact, if the Act was to be construed literally, lie did not see why the same hardships might not have been complained of by the mirtiamen, on which the Learned Gentleman had dwelt so feelingly at various periods of the late war, when the danger of invasion appeared over, and the course of hostilities was directed into widely dif ferent characters. The principle on which they were still kept up under such circumstances, was this,— ; a principle recognised in Addresses of the House, — that it was to enable the Crown to send the regular troops out of the country, for the purposes of ac ' live warfare. On a similar principle a portion of the militia had bean still kept on foot. The peace with America was not yet ratified; we had a large body of troops employed in offensive operations against that country, and the final settlement of the ar rangemeots of vice on the Continent was thought to require the presence of a large body of British troops. The Learned Gentleman had acknowledged, that the circumstance of our"prosimity to France, authorised during a war, even thou g h th ere wa, apparent dati.;-er of inve.iess, the kee p i ng of I:,e militia on foot. B a purity of reaso n i ng, a portion of the militia might be retained. n ith a vi ew tpa „ nk that final settlement which was likely to pre vent the breaking out of hostilities on the Coniitteet. Asti the comments which the Learned Gentleman h a 4 chosen to make on the written opinions of the A t . torney and Solicitor General he would .only say, t h s they were the legal advisers of the Crown to e e b oo ; it applied, for their opinion, in the same way assn,, client might do to the Learned Gentleman itimsr;f. They gave their opinion upon the case submitted them as advocates, just as the Learned Gent. wooldd, to his clients, telling them that their case was ei:itori good or a bad one. Such was the nature of the vice which the Attorney and Solicitor General were bound to give to the Crown. Tho Learned Gent. ha l t adverted to the speed with which the militia we re disembodied after the peace of Amiens. But it should be recollected that at that period the peace was fui'y complete; there were no farther arrangements to b e made; and if, as the Hon. Gentleman argued, there was then strong ground of apprehension from the ambitious views of the French Government, an arg ue ment of this kind would tend to give Government a much wider discretion than any they now claimed, He would now add only a word or two on the sup. posed effects of the proceeding on the minds of tha militia. The Learned Gent. had stated, as contribut. ing to the hardship of their case, that they weremost of them on compulsory service. This he denied, ba. lieving that nine out of ten of them were substitutes. Then the LeartsedGent. seemed to adopt the language of an Hon. Baronet, not in the House, of this being a degraded nation, liable to the lash [No, no, i frumg Sir S. Romilly]. At least he stated as if the conduct of Government gave some kind of colour to this len. guage. He acknowledged that the cases of the nil& tiamen retained were of a trying kind, but he hart not heard that they had felt them as any more than; necessary sacrifice on their part to the general wet. fare. Besides, both during and since the recess se. veral regiments had been disembodied, and others were in progress of being so. Mr. ABERCHOMBY supported the motion et some length. The grand reason why the minty were not disembodied was now acknowledged to be the supposed necessity of keeping British troops is Flanders, for the fear of a rupture of the negocia. tions at the Congress. He found nothing, however, in the Militia Act which authorised their being kept up from a view to political consequences. He knew, from good authority, that the circumstance of some regiments being kept embodied, while ethers were disbanded,thad been felt most deeply by the men : and it also unfortunately happened,.that those regiments which had shown the greatest zeal by volunteering their services for Ireland, had been the greatest suf. ferers, by the very circumstance of their absence from England. the Hon. F. DOUGLAS said, that while we were in a state of war, the country might always be considered- as in danger of invasion. Our coast i might from time to time be exposed to the landing and depredations of the crews of those large frigates !employed in the American service, as well as of their Inumerous privateers, and the militia would he a force well adapted to protect the country in such cases,. The motion, therefore, had his deetded opposition. The ATTORNEY-GENERAL said, he and his Learned Friend (the Solicitor-General) had been se distinctly put on their trial, that, if they remained silent, it might be supposed they had altered the opinion they had formerly given, but that they were i not manly . enough to stand fo r wa r d and av ow it.— The fact, however, was, that their opigion w a s i strengthened and confirmed by every thing they had since heard on the subject. his Learned Friend had observed on the precipitation with which their opinion had been given. The best answer to this observatioa was to be found in the Speech of his Lamed Friend —who admitted, that the question was so little hi volved in technicalities, as to be plain and manifest to the most ordinary capacities. Besides, he most know, that Gentlemen of the profession to which he belonged were frequently called on for opinions at moments, when, if they could, they would willingly refrain from giving them. His Learned Friend seemed to think that the opinion which had been given by the Law Officers of the Crown ought to have emanated from the Judges of the land ; but, he was sure, that. those who were most anxious for the pore administration of justice would deprecate such a pro ceeding, unless the questlott came before them judi cially. The Attorney-General then proceeded to defend himself and his colleague from the insissua tion of their having given an opinion, not the result of their own unbiassed consideration, bat with a view to meet the feelings of the Ministers of the 1 1 C rown. He contended that it was most preposter ous to suppose, that they would deliver an opinion to a Secretary of State, knowing that opinion to be erroneous. Their judgment might he wrong—bat it could not be imagined, that they would wilfully lead one, to whom they were said to be attached, into an error. With respect to the remark of Ins Learned Friend, on the propriety of his ccothining the two offices of Chief Justice of Chester and At torney-General in his own person, Ire would remind him, that he was not the only person who had held those two situations—and be was convinced that it the Noble Lord (Kenyon) who was once appointed to them, had conceived that there was any thing ob jectionable in the transaction, he would have de clined accepting of the two offices. Cases had, how ever, occurred, in which the Judges were called on for their opinions, on prints that were likely to come before them judicially at some future period. — Of thit description was the question propounded to all the Judges. with Lord Mansfield at their head, who, being asked whether an individual, who had been in the army, but who had seceded from the ser vice, could be tried by Court-Martial, for offences alleged to have been committed, while he was con nected wiqi it, answered in the affirmative—reserv ing to themselves, if the case ever came before them, a right to alter their opinion ; if, on farther consi deration, it appeared necessary. When he (the At• torney-General) gave his opinion with respect to the militia, he reserved to himself a similar right. lie still, however, continued of opinion, that the Crown might keep the militia embodied after it had once been drawn out. `;ir A. PIGGOTT observed, that, in 1792, when the foi on shi on ab fo' mi to th at et tC al O A I • to • • a • I a 1 7 • 1 a • ] a d Li 1 f. a a ;t g . 4 7 a is d re d. ra id It st a It d rs • It a a s c a 0 ,• r s e • •,, a