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Friday, November 24, 1775.
Ordered, That the Order of the Day for the third reading of the Bill, be now read.
And the said Order being read accordingly,
The said Bill was read the third time.
Mr˙ Marsham moved an amendment to the preamble of the bill. He observed, that the words, as they stood at present, declaring that "doubts having arisen of the legality of the measure," were an insult upon the good sense of the House; for by what construction of law or reason was it possible to presume a necessity of indemnifying the advisers of such measures, while the whole of the offence imputed to the supposed offenders was, that the measure was
Mr˙ Filmer Honeywood seconded the motion. He insisted how dangerous soever the introducing foreign troops into the dominions of the Crown of Great Britain, without the consent of Parliament, might be, the precedent to be established by the present bill would be infinitely more so; because it was plain it could not be intended to indemnify the Minister, but to give the measure itself the sanction of Parliament.
Mr˙ Ambler opposed the motion. He said, let the bill pass as it is — it can do no harm, for it left the matter just as it found it; but for his part, he could not possibly discern the least occasion for a bill of indemnity, as where there was no crime committed, no indemnification could be required.
Mr˙ De Grey contended that his Majesty' s advisers were perfectly justified in the advice they had given; that the measure was necessary, and the necessity was a full justification of it. If the amendment was pressed, he thought the bill ought to be withdrawn.
Mr˙ Serjeant Adair said, it was plain beyond question, that if his Majesty, by his royal prerogative, could introduce foreign troops into any part of the dominions of the British Crown, he might introduce them in any number he pleased, and into every place he thought proper, in time of peace as well as war. He observed, that whether we considered the law as it stood anterior to the Revolution, or as it was then declared, it was evident, that even keeping a standing army of natives was contrary to law, much more foreigners, when the spirit of the Constitution was considered.
Mr˙ Morton affirmed that the measure was legal, because it was taken in a time of war.
Mr˙ Moysey protested against the absurdity of declaring the law doubtful in a great constitutional point, and leaving those doubts to imbrangle posterity. He then entered into a discussion of the legality of the measure, which he argued was in direct violation of the Bill of Rights. He insisted, from both the letter and spirit of it, that the provision against standing armies was co-extensive with this empire, and dwelt much upon the distinction between foreign war and rebellion.
The Solicitor-General, (Mr˙ Wedderburn,) insisted upon the distinction between garrisons and troops at large, and alleged many passages in the conduct of the Legislature to warrant such distinction, even in the frontier forts within this Island. He said the check which Parliament had upon the Crown in regard to the Army was, the payment of the troops; if the measure in question was fit and beneficial to the publick, it should be ratified, though it were against law; but if unfit and inexpedient, should be condemned, though the letter of the law were with it.
Mr˙ Adam declared his opinion against the legality of the measure.
Sir Adam Fergusson insisted, that though this were admitted to be a time of war, yet the calling in a foreign army would always have wanted an indemnity; that both the literal and substantial meaning of the Bill of Rights clearly imported, that no military force whatever had a right to be kept on foot without the consent of Parliament. The matter was, indeed, self-evident; for it fairly amounted to this, that if either the letter could be evaded, or the spirit explained away, it would follow that the law enacted nothing, and that the King of Great Britain might keen any number of forces he pleased on foot, without the consent, nay, against the declared sense of Parliament.
Mr˙ T˙ Townshend said, the Minister came before the House in a situation no Minister ever before ventured. He had violated the laws of his country, and had the effrontery to come to Parliament, not to be indemnified, but to make
Mr˙ Burke said he had heard of angelick Parliaments, healing Parliaments, diabolical Parliaments, wonder-working Parliaments, but never till now of a doubting Parliament. He asked, did the gentlemen of the long robe, those of the Treasury bench, or the very worshipful corps calling themselves the King' s friends, doubt? Because, if they did, he was certain there was pot a single person in the House besides who doubted that the measure was directly against law, and subversive of the Constitution.
The Attorney-General, (Mr˙ Thurlow,) replied to Mr˙ Serjeant Adair, to explain the doctrine of non-resistance he had in a former occasion delivered, in which he made his doctrine more palatable than it was before.
Lord North concluded the debate. He treated the arguments on the other side with some pleasantry, but did not answer them; and observed, that as the gentlemen on the one side were positive for the legality, and the gentlemen on the other side as positive for the illegality, he thought there could be no impropriety in stating the law to be doubtful.
And the question being put, That the words proposed to be left out, stand part of the Bill;
The House divided. The noes went forth:
Tellers for the yeas,
Tellers for the noes,
So it was resolved in the affirmative.
Resolved, That the Bill do pass; and
Ordered, That Sir Grey Cooper do carry the Bill to the Lords, and desire their concurrence.
Bill read the third time
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substantially legal, but that doubts had arisen in some men' s minds relative to its legality? This was a mockery, he contended, too gross to be endured. He hoped, therefore, for the dignity of Parliament, and the particular respect due to that House, that the noble Lord who brought in the bill [Lord North] would consent to amend the preamble, by leaving out the words "doubts have arisen whether the advising his Majesty to send such troops to such garrisons, during the recess of Parliament, could be justified by law," and insert, "the introduction of the said troops is not warranted by law, and contrary to the spirit of the Constitution," instead thereof.
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Parliament testify that he had done nothing but what was perfectly justifiable.
Sir. Henry Hoghton,
Mr˙ DeGrey,
131
Mr˙ Marsham,
Mr˙ Filmer Honeywood,
58