ship concluded by moving, that the bill be then read a fecond time.

On the question being put,

The Earl of Carnarvon rofe and faid, I fhould have felt no objection to almost any system, whether of volunteers or armed peafantry, which could have added ufeful strength to the country at a moment when all its energies must be exerted, provided in its formation it had not a tendency to prejudice ou more effectual and regular force, and the conftitution of the country had not been unneceffarily impaired. A fpirit and courage, more than equal to the dangers that threaten, has manifefted itfelf in every clafs of people univerfally through every part of the country in a manner without example; and might have fupplied his Majesty's Minifters with ample means of organizing fome permanent fyftem of defence, capable of refilling any attacks which our moft inveterate enemies could make upon us now, or at any future pericd. But Minifters have been bewildered with the quantity of materials in their hands, and whatever advantages might have been derived from a volunteer fyftem, have been loft by their mifmanagement; they have fo fingularly arranged it, that it is incapable of being fubftantially amended in a Committee, and instead of a volunteer force which might have been firmly relied upon in the time of danger, they have erected a fabric which may diffolve before the moment of its ufe. They have encouraged and accepted offers, referving to the corps the extraordinary power of withdrawing their fervices at pleafure, at any time before the appearance of the enemy; fo that the danger may meet us, without force; and to this abfurdity they have pledged the King's faith, and put it out of the power of a Committee to correct this error. This evil is further increased by a review of the curious, fabrication of that which is peculiarly called the defence bill. I agree with the noble Secretary of State, that the merits of the volunteer system proposed to be amended by this bill, cannot be duly estimated but by a confideration of the general state of the defence of the country. I must therefore confider the defence act and the prefent bill as one, they are indeed fo interwoven that they cannot be feparated; the first is the reputed parent and heir of the latter, for the noble Secretary informs us, that the failure of the volunteer fyftem, is to be replaced by the execution of the defence act, which is now placed on the fhelf and remains a dead letter. This extraordinary

extraordinary act is founded on an affertion of an ancient prerogative of the Crown of which not the flightest proof was produced when the bill was urged with fuch precipitation through this House, that it paffed in two days without the ufual forms, as if difcuffion was dangerous. The affertion of this unknown though it seems undoubted prerogative, feems to have been intended for the fole purpofe of making the extraordinary provifions of the bill appear to be deeply rooted in the ancient constitution of the country, left the fyftem adopted by the bill fhould appear as repugnant to mankind, namely, of blending all claffes and conditions of men, from the Prince of Wales (the first subject) to the lowest beggar that infests the ftreets, in one common array as common foldiers equally serving in the ranks and liable to the moft difgraceful punishment for offending the dignity and commands of a Chelsea penfioner ferjeant or corporal to be placed over them, equally liable from the highest to the lowest to be transferred to the ranks of the regulars, militia, or fencibles. The Prince of Wales, if he had not fortunately been colonel of a regiment of dragoons, would have found that his ftation in the country, when its dangers call every man to his poft, is decided by this act to be in the ranks, a common foldier, looking to corporal's rank as promotion. No man but thofe who formed this plan could believe fuch an impracticable fyftem of folly could have fuggested itself as a ferious fyftem of defence to a fet of men calling themfelves ftatefmen, or could expect a facility in its execution, introduced by the affertion of a prerogative which never existed nor could now be put into execution. But in truth this system was not fo much calculated or intended to be acted upon, as to create a terror which fhould have the effect of railing volunteers by compulfion, on whom the framers of the bill placed their ultimate truft for the defence of the country. The whole ftructure of the defence bill marks that this forced body of volunteers was the object of an act which has ultimately lodged in the Crown a power which is fubverfive of the conftitution of the country and the liberties of all claffes. By this ingenious contrivance it was expected that volunteers would come forward to protect their neighbours from the oppreffive operation of the act, and being fo produced would make a better defence against the enemies than an army compofed by the act of perfons whofe education, habits of life and inclination revolted again.ft the pofition in which they were placed by force. The framers of the bill might have in vain waited for any ex:enfive army of volunteers

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

Lord Ellenborough faid, that if he had not been used to hear the moft monftrous propofitions, he fhould have thought it impoffible that any perfon fhould gravely exprefs a doubt of the prerogative in the King to require the affiftance of his liege fubjects in cafe of an invasion; it must go along with the feeling of every man, even if he had not given himfelf the pains to examine into the ftatutes and rolls of Parliament, which would have foon convinced him that no doubt could arife in the mind of those moft difpofed to receive them, of the exiftence of this prerogative. The power of requiring the military fervice of every man against the invafion of an enemy, must in every civilized country exist somewhere, and it could not be placed in any hands but thofe of the fovereign head of the state. The country must be without defence unless fuch power could be reforted to: whoever had the right to make war, muft have the power to carry it on; and if the noble Lord had been at the trouble of reading the acts, he would have found that in the 13th of Edward I. all men, according to their faculties, are ordered to provide themselves with arms. The learned Lord then read out of the statute, "It is commanded that every man have in his house harness to keep the peace after the antient affize, that is to fay, every man between 15 and 60 years fhall be affeffed and fworn to armour according to their quantity of lands and goods;" and he also read an act of the ift of Edward III. chap. 5th, in these words: "No man fhall be charged to arm himself otherwise than he was wont, and no man fhall be compelled to go out of his fhire but when neceffity requireth, and fudden coming of strange enemies into the realm, and then it shall be done, as hath been used in time past for the defence of the realm." His Lordfhip obferved, that it was impoffible

to

to read this act and withhold conviction of the exifting prerogative to call out every man upon the coming of strange enemies into the land; and if more proof was required, the commiflion of array which was referred to the confideration of Parliament, in the 5th of Henry IV. would prove the existence of this very prerogative. It was immaterial that the act of Henry IV. was repealed, the commiffion contained the prerogative under which it was iffued. The propofition must be fo evident from these words, that the noble and learned Lord though: it would be wafting their Lordships' time to dwell longer upon the fubject.

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

on

on war; and in the conclufion of the act it enjoins fheriffs and conftables" to take heed that thofe fo armed follow the hue and cry of the country;" and the title given to the act is"for the view of arms to follow the hue and cry;" and nothing is fo clear as that this is the meaning of this act, and to this day no person is exempt from following the hue and cry of their refpective counties: and if any doubt could fubfift whether this act made part of the general fyftem of offence and defence. against foreign enemies, the act of the 4th of Henry IV. chap. 13th, puts it out of doubt, by omitting this aết, when it recites and confirms all the other fubfifting acts, which do clearly relate to the general military fyftem. The noble Lord has omitted to read this act of 4 Henry IV. which diftinctly proves that no perfon (whatever encroachment of prerogative may have been attempted) could be called upon for military fervice, but by tenure, and affent and grant of Parliament. The act of the 4th Henry IV. chap. 13th, runs in these words: "It is ordained and established that the ftatute made in the ift year of King Edward III. grandfather to our Lord the King that now is, containing that none fhall be constrained to go out of their counties but only for caufe of neceffity and fudden coming of ftrange enemies into the realm; and the ftatute made in the 10th year of the said grandfather, chap. 7, That men of arms, archers, and hoblers, chofen to go on the King's fervice out of England, fhall be at the King's wages from the day they do depart out of the counties where they were chofen; and also the statute made the 25th year of the faid grandfather, That no man be compelled to find men of arms, archers, nor hoblers, other than those which do hold by fuch fervice, unless it be by common affent and grant of Parliament, be firmly holden and kept in all points." This ftatute is made to refift encroachments made since the paffing those acts which it revives ( as if difufed) by recital and confirmation. The first, is that read by the learned Lord, and is a proof that no enemy being in the land, those who owed fervice to the King, had been haraffed by not paying their wages; and the laft states the law of the land refpecting the military fyftem of those days, as is against these encroachments, that no man of arms, &c. fhould be compellable unless by tenure, or confent of Parliament. Nothing can be more clear and explicit than the words of this laft ftatute, which places the military power of the Crown on its undoubted basis, namely, the military teVOL. II. 1803-4.

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nures,