"Lincoln's- Inn, Nov. 17th, 1814. My lord; We have had the honour to receive your lordship's letter of yester- "We are of opinion, that if the external day's date, stating that some doubts having and internal situation of the country shall, been expressed, whether the militia of at any time, in the judgment of his MaGreat Britain can legally be kept embo-jesty, call for and justify a reduction of the died under the present circumstances in which the country is placed, your lordship is pleased to desire, that we will take into our immediate consideration the several

were not supposed to have a very superstitious veneration for the constitution of their country, yet they had not ventured to do what had been done by the present administration : they had treated both the House and the country with more respect, and had entered into the fullest explanation of their motives and their conduct. The hon. and learned gentleman observed, that it seemed not improbable that the militia were, on this occasion, continued embodied without any special necessity, but merely to shew the power of the crown, and so to establish a precedent for extending the royal prerogative beyond its legal bounds. He would say nothing of the conduct of ministers in continuing particular regiments embodied after others had been disbanded; but having admitted that it was perfectly legal to maintain the military subordination of the militia, he thought it necessary to ap→

have been to have called for an opinion as to the legality of a measure, and then to have taken measures accordingly. But the Opinion of the law officers of the crown had been taken but lately. Minis. ters had taken their measures first, and then resorted to their law advisers to know whether they had acted legally. The minds of the advisers were thus necessarily influenced by the conduct of those who, they would of course suppose, were possessed of some knowledge of constitutional law. He had not seen the Opinion of the law officers, although it had been circulated; and he could not, therefore, conceive the reasons on which they supported their opinion. None of the four causes for embodying the militia existed. It was evident, that the cessation of these causes was the period at which it should be disembodied, since it was particularly mentioned, that the militia should be called out only for the pur-peal to the House on the part of those pose of repelling invasion, or suppressing insurrection. Such care and anxiety having been manifested to prevent an improper exercise of the prerogative in calling the militia out, it was impossible that no limits should have been intended to have been assigned to their continuing embodied. The causes of calling out the militia having ceased, it ought to be matter of deep consideration with ministers, how far they were justified in continuing to the country those heavy burthens under which they had so long laboured. If any great and urgent cause existed for such a proceeding, let it be fully and fairly stated to the House. In 1776, the ministry of the day had amply represented to the House the reasons for their conduct those persons, to say the least of them

of some regiments shall at any time be ordered, it by no means follows that any other regiments, or any person serving in any regiment, not included in his Majesty's order for disembodying, are entitled to, or can claim to be discharged from service; but that it must be in the discretion of his Majesty's government, acting upon their knowledge of facts, and upon their constitutional responsibility, if they shall see proper, to suspend any order which may have been issued, but not in fact carried into execution. We have, &c.

"W. GARROW.
"S. SHEPHErd.

"Lord Viscount Sidmouth, &c. &c. &c."

who were then retained in military service contrary to the intention of the legislature, by which the militia law was framed, and contrary also to their own just expectation. He meant the privates, who must be subjected, by this measure, to great harshness and inconveniencies. To have men who were not reared to a military life, who were probably, in the first instance, torn from their homes and families, to serve in the militia, compelled to remain in that body without any necessity, must be felt as a very severe grievance, especially when the disappointment of their hopes upon the conclusion of a definitive treaty of peace, and the too probable forlorn condition of their wives and children, were taken into consideration. The House would, he trusted, feel for the situation of these men, who might be thus condemned to the most painful reflections, in consequence of a measure which he conceived, and which these men themselves would be too apt to conceive, as a great breach of the public faith. The ballotted man must naturally expect, as indeed all other men expected, that his services would cease upon the conclusion of peace. So much, indeed, was it the right of the ballotted man to look for the termination of his services on the event of peace, that if ministers had afterwards thought it necessary even to apply to parliament for leave to continue the militia embodied, it was his settled opinion, that parliament could not consistently accede to the application, without allowing the

for ministers would not be justifiable in advising his Majesty to act against the law, unless, indeed, upon some case of imperious exigency, for which it would become them afterwards to apply to parliament for an indemnity. An act, however, might be perfectly legal in the crown to do or to order, which it would not be expedient to advise, or for which advice ministers would be constitutionally responsible; for instance, it belonged to the prerogative of the crown to make war or peace. This was indisputably legal; but for advising the crown so to do, his Majesty's ministers were amenable to the judgment of that House. Still the making war or peace could not be deemed illegal, although such proceedings might be pronounced inexpedient, impolitic, or, he might even add, corrupt. He agreed with the hon. and learned mover as to his description of the law with respect to the causes for calling out the militia. For invasion, or the imminent danger of in

ballotted men to be dismissed, and ordering a fresh ballot. This opinion he would maintain to be correct, unless parliament undertook to make an ex post facto law, or rescinded its faith. But it was not only the ballotted man who had a right to complain of being compelled to serve after the conclusion of peace; substitutes also were aggrieved; for these men must have looked for the termination of their services on the event of peace. Under all the circumstances of the case, the hon. and learned gentleman declared, that whatever might be the decision of the House on the motion he was about to submit, he should rejoice at having brought the question into discussion, in order that it might be seen, that although ministers had thought proper, in this instance, to adopt a measure contrary to law, on the ground of special necessity, that measure was not silently overlooked; and in the hope that such a step would not be drawn into precedent, but on the contrary, if it should hereafter be referred to, would be regard-vasion, insurrection or rebellion, were, to ed rather as an example to be avoided, than as a precedent to be followed. The hon. and learned gentleman concluded with moving, "That this country having been for more than five months at peace with all the powers of Europe, and in a state of undisturbed internal tranquillity, the still continuing a part of the militia embodied is contrary to the spirit and plain intent of the said Act, and a manifest violation of the constitution."

The Solicitor General said, that being one of those legal advisers to whom his hon, and learned friend had referred, he felt himself bound to vindicate the opinion he had given; and notwithstanding the deference which he felt for every thing that fell from his hon. and learned friend, he had no hesitation in stating that he still retained the opinion which he had officially delivered upon this subject. Therefore, upon the question, whether it was legal or not on the part of the crown to continue the militia embodied, he entertained not the slightest doubt; but, whether it were expedient or not to advise the crown to exercise its legal right, he could not pretend to say. That question must be determined by others more competent to judge as to the real circumstances in which the country was placed. On the question of expediency his Majesty's ministers were to answer. But whatever the degree of expediency might be, he would not vindicate an illegal act;

use a legal phrase, the condition precedent for calling out that body; so the statute stated; but he looked in vain for a single clause or letter in that statute prescribing when or under what circumstances the militia should be disembodied. The law was wholly silent upon that head, and from that silence he inferred that the militia, being called out, it was legal to continue them embodied so long as the crown should think meet; that this point, indeed, was left to the discretion of the crown, subject, however, to the responsibility of those ministers who advised the exercise of that discretion. Such was his construction of the Act, because, from the beginning to the end of it, he found not a word as to the time at which the militia should be disembodied. In other acts, with respect to trade, for instance, in which some relaxation of the law was ordained, the period or circumstances at which that relaxation should cease, was distinctly described. It was mentioned, that the Act should cease six months after the war, or at some other distant period. But in this Act relative to the embodying of the militia, not a sentence was to be found prescriptive of the time at which it should be disembodied. Hence he concluded, that as no restriction was imposed none was intended, and that the legislature meant to leave that question to be determined by the discretion of the crown. With regard to the hon. and

continued embodied in Ireland; and concluded with expressing a wish, that, if ministers thought it probable the necessity would soon cease which they urged in justification of the measure complained of, they would make some declaration respecting it, in order to allay the dissatisfaction which so generally prevailed out of doors.

and learned gentleman, when the militia | In fact, he would in that case think a were once called out, it was left to the standing army to the same amount much discretion of the crown to decide when more preferable, because the constituthey should be disembodied. So that if tionality of the militia being done away, the hon. and learned gentleman's opinion a standing army would be much more were good for any thing, it would go this efficient, as applicable to all descriptions length, that the militia, being once called of service. The noble lord expressed out, the crown had the right of continuing himself extremely glad to hear that the them embodied for an indefinite period persons now serving in the militia were in truth, that they might be continued legally bound to continue their services, embodied to all eternity. Such was the because that opinion, from such high auhon. and learned gentleman's view in thority, would operate much to reconcile judging of the letter of the Act, without these persons to their fate. After advertany regard to its spirit; but, however ing to the grievance to which both balconsonant the hon. and learned gentle-lotted men and substitutes felt themselves argument might be to the practice subject, in being compelled, contrary to of special pleading, he could not suppose their expectations, to continue their serthat it would be deemed very consistent vices, the noble lord stated, that he had with the judgment of that House, or with received several complaints upon the subcommon sense. There was one considera-ject from a regiment of militia, which tion very important to this case, to which he (lord Milton) wished particularly to call the attention of the House; he meant with regard to the officers of the militia. These gentlemen, to whom a qualification of property was requisite, gave their services during war, as parliament had a right to expect, and he believed its expectations had been justified; but was it to be expected that they would be willing Sir Arthur Pigott would wish to state to continue their services in a period of what was his general practice in giving peace? He rather apprehended not; and his vote. When he could acquiesce in should they abandon the militia, it was any motion, he felt little anxiety to trouble but too likely to lose its constitutional the House. With the present motion he character. But the measure under dis- most cordially acquiesced; but not so cussion only formed a part of a system, with the doctrine laid down in opposition which had been long too evident-a wish to it; and, therefore, he could not let the to deprive the militia of its constitutional debate pass, and allow this doctrine to character. That body had been long, by stand uncontradicted. He felt extremely the operation of that system, approaching gratified that the subject had been subto a regular army. By this measure, in- mitted to the House; for he should have deed, he apprehended that the object of been sorry to observe, at a distance of six this system was nearly accomplished; months after a definitive treaty of peace that the constitutionality of the militia was had been signed, and which had fortunearly gone; and that it nearly ceased to nately placed this country in a state of be that which it was originally contem- peace with all Europe, that the militia, plated, namely, the guardian of the liber- that peculiar part of our national force, ties of the people. Such appearing to be was not to be disembodied, and that no the system of ministers, it could not be arguments had been opposed to this inexpected that the militia would continue tention. It was of the utmost consequence long to be officered as it had been hereto- that a full discussion on this important fore; and the direction of that body must subject should take place; for when it was therefore devolve upon another description known that his Majesty had no power to of officers, to whom, without meaning any draw out and embody the militia, except disparagement, the country must look with in time of war, and when we were told a very different feeling. The militia, in that, being so drawn out, it was to be kept a word, were likely to be officered by the embodied under circumstances which he same description as the standing army; believed were without example, then the and if so, where would be the difference sanction of the House for such a proceedbetween that body and a standing army?ing to-day, would become a precedent for

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