UNIVERSITY OF CALIFORNIA AT LOS ANGELES LETTER ADDRESSED TO HIS MAJEST Y's ATTORNEY GENERAL and SOLICITOR GENERAL; IN WHICH THE DOCTRINES LATELY MAINTAINED IN PARLIAMENT, ON THE SUBJECT OP VOLUNTARY SUBSCRIPTIONS, ARE CONSIDERED. LONDON: tklNTBD FOR J, DEBKETT, OPPOSITE BURLINGTON-HOVSE, PICCADILLY. M,OCC,XCIV. 9082 6 H3 A LETTER - ATTORNEY AND SOLICITOR GENERAL. GENTLEMEN, WHEN the queftion which is the fubjecT: of difcuflion in the following fheets was ccftrft ftarted, I could not imagine that an oppor- tunity would have been given to private indivi- S duals to enter into any controverfy about it. Its magnitude appeared to me in a peculiar man- ner not only to entitle it to parliamentary invefti- gation, but alfo to require a complete parlia- mentary decifion. Had our Legiflators thought proper' to decide this point even in a way that might in future affect our liberties, as their act ; I mould, probably, have felt it to be my prefent duty, as an individual, to fubmit to this legitimate 3. expreffion of their will : but as it has been judged expedient to leave this queftion ilill in fufpenfe, ~~ I truft, that without deviating from that refpect B which 300962 which is always dire to the opinions of the Le- giflature, I may be now permitted to enter at large upon the difcuffion : and as I may alfo be allowed fairly to conclude that their deliberation has been influenced by the advice which you have given, for it does not appear that any other emi- nent legal characters m either houfe have given to this meafure the fanction of their fentiments, I know not to whom I can with equal propriety addrefs the following pages, as to yourfelves ; to you, Gentlemen, who, holding high and refpon- fible fituations under the crown, have advanced to fupport this queftion of Subfcriptions, as con- fiftent with the fpirit of our conflitution, and fanctioned by the practice of our laws. To you, tinder fuch circumflances, no further apology for a public comment on your conduct can be necef- iary; and where the caufe is itfelf of the highefl confHtutional importance, where the object of animadveriion is nothing lefs than an open at- terript to defend a violation of the fundamental principles of conftitutional juftice, an effort to expofe fophiflry, and to defend our liberties, re- quires none with the public, though the execu- tion may be not equal to the magnitude of the fubject. I cannot but feel the utmoft fatisfaction in con- templating the characters, with whom it is my fate at prefent to contend. The unimpeachable integrity < 3 ) integrity of private life, while it prefumes the influence of fimilar principles in a public career, excludes the fufpicion of perfonal attack; and, at the fame time, that it affords an excufe for the maintenance of erroneous doctrines upon the ground of mifinformation, relieves the mind from the painful tafk of making any odious charge. With fuch characters, a fair diicuffion may be ex- pected, andreafon and juftice may for once hope to. triumph, through the means of candour, over prejudice, ignorance, and felf-intereft. At the fame time, though I am far from wifhing to de- grade that profeflion for which I am myfelf de- figned, and to which I {hall think it an honour one day to belong, yet I cannot but lament, that upon fuch great points of policy and conftitution, the legiflature ihould yield fo much to the direc- tion .of profeffional men ; for I muft confefs, that upon the evidence of hiftory, my mind is imprefTed with a ftrong conviction, that, generally fpeaking, the lawyers are not the men mod calculated to decide upon fuch queftions. They have in all times been but too prone to derive their political ideas from the fame confined fource from whence they draw their legal notions. They may hunt a queftion of law through the feveral books of the profeiTion, but they muft not attempt to reduce to the minute precifion, and within the ftrict bounds of law precedents, B 2 cafes ( 4 ) cafes often times arifing cut of paffions, which will fcarce admit of any reflraint at all. They expect on all occafions to direct the prefent, after the example of the paftj without making any allowance for thofe changes of circumftance which may poffibly have deftroyed all that ana- logy upon which fuch arguments muft be founded. They appear either to forget, or to difregard, a diftinction of which I can never lofe fight, between the conflitution and the law. The firft laying down general principles appli- cable to every emergency, and giving all that latitude which the extremeft cafe can require, confident with national fecurity ; the latter, im- pofing rules for particular cafes, to which cafes alone thofe rules can in fr.rict conftruction be ap- plied. Inftead of arguing upon the great ground of conftitutional principle, which is capable of embracing every fubject, they refort to a too fre- quently ftrained conftruction of law, and truft to the afliflance of precedents for the fupport of their tottering fabric. In ordinary judicial queftions, whether civil or criminal, which arife between man and man, the law cannot be too finally obferved; an4 its conftruction cannot be better afcertained, than by the precedents of cafes which have been al- ready decided by it. The perfection of civil liberty depends upon the rule of conduct prefcribed for each ( 5 ) each member of the community being exactly defined ; and that general good order and happy iecurity, which is the natural refult of well defined law, amply compenfates for any tem- porary or individual inconvenience which may accidentally arife, out of what, in fome instances, might be called an exceilive ieverity of reitric- tion. But when the fubject of difcuffion is fome political point, fome constitutional queftion, the field of argument becomes more extenfive, the rule of condud: is lefs defined, involves a greater variety of circumftances, and confequently ren- ders the means of decifion apparently more com- plicated. The ftate of the times forms the moft important part of the confideration of fuch que tions, and of itfelf renders the application of precedents in fuch cafes always difficult, often times impoffible. It is eafy to calculate the capacity of a man, and as eafy to guard againft the evils his conduct may produce; and to pro- portion the force of prevention to the gradation of danger ; but national events, their caufes and their confequences, being on fome occafions alike incalculable by human forefight, are equally be- yond the reach of the provifions of human wifdom. Acting upon fuch a confcioufnefs of human imperfection, the conflitution of Eng- land regulates upon general principles what (hall be the conduct obferved by its government, al- lowing lowing to itfelf the exercife of mercy, when*. ever the executive power fhall exceed the limits of its authority upon the ground of notorious and great necefllty. When the crown, upon reafon- able grounds, exercifes any prerogative with which it is not conflitutionally entrufted, the tendency of a bill of indemnity is not to conflitute a pre- cedent by legalizing the meafure, but, on the con- trary, by granting a pardon to that particular cafe, declares it by a neceffary implication to be illegal, and confequently not fit to be drawn forth as an example for the future. The truth is, that in all thofe extreme cafes in which the crown may without hazard to itfelf exercife an extreme power, its j unification does not at all depend upon the analogy of precedents. If the neceffity of the times does not prefent a fufHcient cxcufe of itfelf, the mere fimilarity of previous cafes can avail but little. Who will dare to act on precedents of tyranny ? Yet who will affirm, that no fuch precedents are to be found in our hiftory ? On the prefent <>ccafion, however ftrong my opinion may be again ft the meafure itfelf of raifing money by fubfcription, it is not my in- tention now either to queftion its policy, to ar- raign the wifdom of the invention, or to difpute its falutary tendency -, my object is infinitely more important; it is to infifty that whatever may be the ( 7 ) the advantages to be derived from the adoption of any plan, that plan muft, neverthelefs, be con- fident with the fpirit of our conftitution, and tho manner of its execution confonant to the mode prefcribed by the flanding law of the land. In the cafe now under confideration, I affirm, that the conduct of the king's minifters has been un- conftitutional and illegal. The queftton now is, not what we ftiall pay; but on what authority we (hall pay any thing ? The necefllty of fupply is not contended ; but it is the fyftem by which that fupply (hall be raifed, to which we object. In fhort, it is the revival of the old queftion, concerning which the contefl, and the iffue of that conteft, muft be acknowledged to comprehend the moft melancholy, though perhaps the moft interefting period of Englim hiftory. It is nothing lefs in point of fact, than an attempt to raife money on the fubjecl: without the pre- vious concurrence of the legiflature, conftitu- tionally exprefled by an aift of parliament. It is the firft ftep towards reviving the odious doc- trine of extra-parliamentary taxation; an attempt which no nece/fity can juftify. I have obferved, that in feveral debates and parliamentary converfations, which have lately taken place relative to this fubjecl:, many broad aflertions have been made, to which various qua- lifications and proyifoes have been afterwards an- nexed. ( 8 } nexed. The difcuflion by others again has been deprecated in toto, as involving an abftract quef- tion, the deciiion of which could have no re-- ference to the prefent point. I can difcover no motive for fuch a conduct, but that which fprings from an inclination to bewilder and perplex; by which means the public may be liable to be blinded as to the real queftion, and wholly lofe fight of the great intereft which they have in its final decifion : and there was the greater neceffity for the exertion of every various artifice to effect this, purpofe, becaufe it is impoffible to conceive any queftion more fimple, or one which arifes more naturally, out of a fact equally fimple and inconteftible. The fact is, that the minifter of the crown has in his minifterial capacity, with- out the previous authority of parliament, iffued letters to the lord lieutenants of different coun- ties, calling upon them to folicit and to receive the voluntary contributions of thofe perfons who (hall be willing to fubfcribe, for the purpofe of defraying the expences incident to an additional fyftem of internal defence. The queftion which arifes on this fact is, fimply, whether fuch let- ters having been iffued without the previous au- thority of parliament, have, or have not, been iffued according to law ? That is, in order to make the queftion yet more pointed, can the crown, by any device, mweite fubjects to a volun- tary ( 9 ) tary contribution towards defraying the expences of the government, without previoufly obtaining a parliamentary fandion ? It is conceived, that no fuch device can at this time be pradlifed without a grofs violation of the principles efta- blilhed in our conititution, without an actual in- fringement of an exlfting flatute, and without being wholly unfupported by any precedent whatever. Precedents being in fact only the recital of pad t ran factions, can derive no weight from any in- triniic property in themfelves; their force de- pends entirely upon the authority from whence they proceed, and mud be wholly comparative. In points of law, precedents which are founded on the opinion of one judge, may often carry far greater weight with them than thofe which are built on the opinion of another. A pre- cedent eftablimed by the decifion of a court of juftice, is yet more conclufive j but every other fpecies of precedent muft yield to the irreflftible force of one eftablimed by an act of parliament. Such is the nature of precedents applying to points of law, and admitting of a liability of deciiion, which in political questions is utterly impracticable. The law is always the fame, but the times are continually changing. That which is law to day, unlefs overturned by fome competent authority, muft alfo to- C morrow ( '0 ) morrow direct the conduct of thofe who are fubjedt to it; but that which in policy is at this moment ftrictly expedient, may, perhaps in the next, become abfolutely improper. The event of a battle, or an unexpected turn in a negotiation, may produce circumftances uncal- culated, and for which no provifion had been made; bat, above all, a revolution in the opi- nions and difpofitions of mankind, may fubvert at once the whole political fcheme, or make ruin the inevitable confequence of perfeverance. Per- haps, if there ever was a period in hiftory com- pleatly illuftrative of this pofition, it is the pre- fent, when the ideas of men are preparing to flow in new channels, and to direct their pur- fuits to new objects ; when the human mind appears for a moment to have fufpendcd it? functions from a dread of flavery on the one hand, and from the fear of anarchy on the other ; it is as it were an awful crifis, big with the fate of pofterity; a fort of chaos, awaiting the hand of fome fkilful artift to mould it into fhape, and to create the happinefs of man- kind. At fuch a period, refinement in conduct appears only the effect of infanity: to expect ul- timately to delude men out of rational rights, is a folly to be exceeded only by attempting it. The deception, when the veil is drawn afide, is calculated only to exafperate, and to Jix the wavering ( II ) wavering refolution. The only path to be pur- fued, is that which plain common fenfe directs, to harmonize and to conciliate. To feek for, and to apply then to times which are without ex- ample in hiltory, precedents in themfelves hof- tile to liberty, and which have arifen in periods unmarked by any extraordinary events, is tome* thing worfe than ridiculous; and to expect at fuch a moment to enforce unrefifted the doctrines propofed to be eftabliflied, is an excefs of folly which is only to be regretted from the confe- quences it is finally calculated to produce among the unoffending innocent multitude. But even granting that every cafe which has been cited, is a cafe in point, what has been your conduct on this cccafion? You have been fighting the weak- eft againft the ftrongeft point; you have been upholding the force of a variety of precedents, founded on mere opinions of judges, againft the exprefs declaration of an act of parliament. Such a conduct appears to me to amount to nothing lefs than maintaining, that, .upon the authority of judicial proceedings, the operation .of an act of parliament may be fufpended . an( j that not only a court of juftice, but any one of the judges of that court, provided he has eiHbliflied a high legal character, may aflume a power of legiflation. To argue either the abfurdity, or the rafhnefs of fucfr a doctrine, would be jto C 2 infult infult the underftandings of the people. It is a point which cannot be eftablimed, but by the total fubverfion of the conftitution of this country. Confidering all precedents on conftitutional queftions in the light I do; refering every thing to principles, and not to examples j accommo- dating thofe principles to the times ; and con- ceiving every period to be entitled to make its own example according to p elent exigency ; I mould have fcarcely felt it incumbent on me to animadvert, in any degree, upon thole precedents which have been advanced, had they been only Incidentally introduced into thofe defences of adminiftration upon which the par- liament appears to have founded its late decifion ; but when I reflect that tbefe precedents do in fact conftitute the whole foundation on which thofe arguments have been raifed, the tendency of which has been to weaken the authority of an exifting aft of parliament ; I fhould reflect, that I had been wanting in that juftice which is due to the fubject, had I neglected the opportunity of annihilating, in the firft inftance, the whole ground of defence, by examining the applicability of the precedents themfelves. The firft name which appears in your catalogue of authorities, is Lord Coke; and his opinion, as collected from his I2th Report, if indeed it may be be ranked as a precedent, is confidered as de- ciJedly in favour of voluntary benevolences. Allowing to thefe opinions all the authority of law at the time when they were given, flill they can have no force now, if the 13 C. 2. is not repealed; but even waiving that acl, there is flill fome ground for difputing the authority of Lord Coke, to the extent required, and that ground is furniihed by himfelf. I have here one obfer- vation to introduce, which is, perhaps, of fome importance to the public, as it may pofiibly ailift them in forming a judgment on this fubject ; r it is, that the 2th Report of Lord Coke is wholly compofed from a collection of loofe papers, and which, in many inflances, and par- ticularly in the prefect, feem to have been in- tended .merely as memorandums, probably prepa- ratory to fome future defign. The utmoft extent to which any opinion delivered in this report, can be ftrained, confident with thofe contained in his other works, is, that the king was not prohibited by any ftatute, from receiving the voluntary fub- fcription of a fingle individual. And what he does aflert, he deduces as a confequence from the flatute 1 1 Hen. 7. c. 10. It does not appear upon a view of this ftatute, that any other inference can be drawn from it, in favour of voluntary fub- fcriptions, than what I have mentioned j and it affords very ftrong evidence, that the crown had no ( 14 ) no means of compelling any payment, where the demand originated from itfelf ; fince this aft is intended to give him a power of forcing the pay- ment of thofe fums which had been fubfcribed, though not paid in, by the voluntary and free will of his fubjeds; and the neceffity of fiich an ad, (for we muft pre&ime no act to be paiTed with- out fome neceffity) is conclufive, that he did not poffefs even fuch an inferior prerogative, as that of forcing a fubject to fulfil a voluntary pro^ mife. It is obfervable alfo, that the preamble to this ftatute ftates, that " Divers of his Majefty's fub- *' jecls had federally granted divers fyms of c money of their free wills and benevolence*." This word federally, if it has any meaning, muft intend the fubfcriptions of individuals fingly, and not ajfoclated together in bodies ; fuch as is the cafe at prefentj and as it was in a cafe of the reign of Ed. 3. on which I (hall hereafter enlarge; and in Hating which cafe Lord Coke, in that which is perhaps the moft perfect of all his works, Jiis commentary on Magna Charta, contained in his sd Inftitute, declares, that it was finally conceded that " no fuch grants Jhould be mads but by parlia- The next authority which you have adduced * App. (R.) +2 Inft. 60. a? ( '5 ) as tending to legalize the prefent fyftem of ex* citing voluntary contributions, is a parenthetical opinion delivered by Lord Hardwicke, in pro- nouncing fentence on the rebel peers, in 1746, and which profefles to declare the fubfcriptions of that time neither unconstitutional nor illegal. It is to be obferved, that this opinion of Lord Hardwicke was totally extrajudicial^ as it arofe upon no point which was before him for deci- fion ; it was given incidentally in the courfe of an eulogy on the zeal and fpirit of the Englifh people, when there could be no reafon to quarrel with the mode of exertion, from the nature of the cafe; and even if there had been, when few perfons would have dared to find fault; but when on the contrary there was rather a general ten- dency to magnify into virtue, what in effect pro- ceeded from neceffity. It was rather an opinion which originated in the momentary enthufiafm of the judge's mind, without being founded on any convidion, the refult of deep and laborious re- fledtion. It was given fra?rj the feat of juflice; but it has no pretenfion to the weight of judicial authority. Yet, even allowing to this opinion all the force which ths authority of that great lawyer can give to it, let us look a little into the circumftances attending the meafure. Thefe fubfcriptions were made with a view to encreafe the Itrength of the kingdom, at a moment of open, ( 16 ) open, and at that time fuccefsful, rebellion, and at a moment when the rebels were advancing by hafty marches to the metropolis. It was at that particular, punftum temporls belli, that period which juftifies the fufpending the courfeof juftice, which authorizes the temporary (hutting of the courts of law, which legalizes every exertion of every defcription, not merely by the authority of conftitutional law, not by the power of an a he calls upon the inhabitants of Briftol to do that, which on fuch an occafion every inhabitant of the country is bound to do on a requifition from the crown, and leaves to them to mar- tial themfelves into troops at their own difcretion, and to appoint their own officers* In confequence of which legal requifition, the citizens of Briftol raife among themfelves a fubfcription, not to be applied to any purpofe at the will of the crown, but in order to enable themfelves to do that which they were all individually bound to do, when required, viz. to attend in perfon their fovereign, at a moment of adual rebellion within the realm, for the defence of their conftitution, their laws, their property, their country, and their king. Such was the fubfcription approved by Judge Forfter, and fuch were thofe fubfcriptions to which Lord Hardwicke adverted as being ftrictly legal, as D 2 in in truth they were 5 though, even on that oc- cation, there were perfons who felt fomething like prophetic fear, leaft thefe innocent, nay laudable efforts, mould ferve as future examples, when a fimilar neceffity might not exift. The true diftindtion is, that there are times in which the crown has a right of itfclf to command the perfonal attendance of all its fubje&s, but none in which it can confthutionally accept \hsjubjti- tution of their purfes. With regard to the precedent of 1759, it ap- pears upon the face of it, to have been a mer& voluntary fubfcription for encreafing the levy money already voted by parliament. Upon this I need not at all expatiate; and the lefs, becaufe in confidering this queftion in a conftitutional light, I mall have occafion to ftate a cafe of the fame kind. The next in order is the precedent of 1778*.- Early in that year (i6th of January) the city of London ,- on the motion of fome of the prin- cipal merchants, aflembled in common council for the purpofe of confidering of the means of raifing money among themfelves, in order to affift in defraying the expences of the war, or to raife new bodies of troops, A propofition to fuch an effecT: was made; which, after having been debated, was rejected. It would be highly in- * Vide Annual Regifter. decent 1 { 2. ) decent to pafs this period of the argument; without doing that juftice to the confident and conftitutional fpirit of the citizens of London, which is fo eminently due to their uniform zeal for the interefts of their country, and their fteady attachment to conftitutional principles- It is a fufficicnt encomium on that refpectable body to fay of them, that on proper occaiions, and when called upon in a proper manner, their loyal exertions are not to be exceeded; but whenever they feel the fummons to be a vio- lation of the con dilution, no party clamour Can prevent them from marking, by their con-! duel, their difapprobation of the meafure. Irr confequence of this difappointment, thofe who had promoted the meafure agreed again to meet* and accordingly did fo at the London Tavern, from whence they published in the newfpapers the following advertifemenr, dated January 17,- " At a meeting of feveral merchants and others, " friends to their King and Country, in order to " fupport the conftitutional authority of Great " Britain ever her rebellious colonies in America, " it was unanimoufly refolved and agreed, that a " voluntary fubfcription be opened fo:- the above " purpofe, and that the money arifing therc- *' from be applied, under the direction of a co:n^ " mittee of the fubfcribeis, in raifing men for his " his Majefty's fervice, in fuch manner as his " Majefty in his wifdom ftall think fit." And this was accompanied by offers from dif- ferent perfons and places to raife corps of troops, which offers were accepted by the crown with- out even any fubfequent attempt to obtain the fanction of the legiflature. At the time of the abovementioned meeting 1 parliament was not fitting, but it met on the 2oth ; and the houfe of lords adjourned, after hearing the titles of feveral papers read, to the 23d of January. On that day the Earl of Abingdon, immediately after the houfe met, adverted to the circumftance, and gave notice of his intention to move for the Judges to be fummoned, which motion he accordingly made on the 2/th ; and on the 4th of Fe- bruary again brought the fubjecl: into dif- cuffion, by moving two refolutions declaratory of the illegality of fuch voluntary fubfcriptions. In every debate which took place on thefe feveral motions, Lord Gamden was particularly decided in the fentiments he then gave, and earneftly afferted the unconftitutional and il- legal tendency of every meafure by which the crown might obtain, without parliamentary fandtion, the difpofal of fums of money raifed without parliamentary authority. On the 22d of January, being the 3d day of of meeting after the adjournment, the fubjeft was incidentally touched in converfation in the houfe of commons ; and en the 4th of Fe- bruary the affair of the fubfcriptions was again introduced in the debate ; in both which inftances Lord Amburton, then Mr. Dunning, treated the meafure with the utmoft feve~ity, and pointedly con iemned it as unconftitutional and illegal j and on the ad of April a fpecific motion was made by Mr. Wilkes, for leave to bring in a bill to prevent iimilar practices. In this motion he was mod ftrenuoufly fupported by Mr. Burke. In this cafe alfo the crown does not appear to have been the original promoter of the n-eafure, though it certainly conceived itfelf juftificd in accepting the voluntary offerings of its patriotic fubjecls, a meafure decidely condemned by Lord Camden an 1 Mr. Dunning. The next and laft precedent to be examined, is that of 1782; and, as it feems to be that cafe on which administration appear to have placed mofr. dependance for defending their prefent meafure, it is moft necefTary to give it a diftincT: and particular attention. This may be accomplimed with the lefs difficulty, and to greater advantage, inafmuch as the documents relating to it are all in exigence, and no difpute can arife from an inaccurate remembrance of the fads facts relating to it. It is fomewhat fingular, that thofe to whom the tafk of defence was allotted, fhould, under a knowledge' of the no- toriety of thefe circumftances, have ventured to practice fuch an unexampled degree of fophifrry as that which has been exerted on. the prefent occafion ; a fophiftry which could have no pretenfion to fuccefs, but that which originated in its own incomprehenfible refine- ment, and which could entertain no hope of cfcaping detection, but through the indolent in- attention, or too great confidence of thofe to whom it was addreffed. It is fincereiy to be lamented, that the effect which it has produced, Should have created the necefftty of expofing it to the public. The firft documents to be confidered, are the letters of the Secretary of State of that time (Lord Shelburne), and the plan propofed. The firft letter is a circular addrefs to the chief magiftrates of the feveral great towns ; the fe- cond is one to the Lord Lieutenants of the diffe-r rent counties, enclofing that to the Mayors of boroughs or cities ; and the third is a diftincl: letter of a different defcription, addrefled to the Lord Mayor of the city of London. Thefe feveral letters were all accompanied by an inclofed plan, which is the 4th of the four firft documents which, which I propofe to examine. Upon the face of the two firit of thefe letters* it appears, that the fole object of adminiftration in fend- ing them out, was to collect information as to the moft effectual means by which the energy of the country might at a critical period be called forth. They were not fummonfes to act, but fimply to deliberate upon the beft mode of acting ; and the plan which accom- panied them, could only be conlidered as fug- getting hints upon which the letters them- lelves called for improvement. The plan was recommended to be taken into immediate confedera- tion, and a report to be made of whatever ob- fervations might occur for carrying it into exe- cution. It was to be confidered as a propoji- tion of a temporary plan, which being adopted or improved, might tend to make a refpectable addition to the national force at home; and the obfervations which might arife were required to be communicated, in order that they might be fubmitted to the confideration of his majeftyj while the plan itfelf can appear in no other light, than as a collection of hints for the approval of the counties, to be fubmitted, firft, to his Ma- jefly, and afterwards to Parliament, before execu- tion $ becaufe it is to be obferved, that the pro- * App. A and B. E pofal pofal is, that all expences Jhatt be paid by govern- ment, but not by fubfcription. The troops fo raifed, were to be fubjedt to military difci- pline; and that in cafe of adhial fervice, and of any perfonal dilability in confequence of fuch fervice, the perfons fo difabled mould be en- titled to the fame advantages with regular fol diers, and the fame bounties extended to the widows of fuch as might fall in the propofed fervice, Thefe provilions could not by any means have been carried into execution with- out a previous parliamentary fandtion ; and that fuch a fan&ion would have been required, had the plans propofed been ultimately adopted in toto by the king's minifters, may very fairly be prefumed from the circumftance of an acl:, viz. 22 Geo. III. c. having paiTed, to autho- rize the execution of fo much of the plan as it was thought expedient to adopt. The letter to the Lord Mayor of London* which is of a different complexion from thofe to the counties and boroughs, as it goes beyond the line of enquiry, and calls for a repetition of ex- ertions which had on former occafions been fuc- cefifully employed, is alfo an additional proof that the minifter did not think himfelf juftified in making fuch an application generally through- (C.) out out the kingdom ; for, knowing that the city of London was permitted to have troops appro- priate to itfelf, he calls upon the chief magiflrate to take the moft effectual means to prepare thofe troops for fervice, in cafe of any fudden neceffity; and at the fame time requefts an opportunity of conferring with the Lord Mayor as to any additional exertion which the city of London may think proper to adopt. This letter is evidently a letter of fome thing more than confultation. It is a letter of confultation, where it calls upon the city to advife as to the beft means of doing that which had not beenufuatfy done; but it is alfo a letter of requifition, upon points in which the minifter faw that he might conflitutionally require ; and it is justifiable to infer from thence, that he made no requifition any where elfe, becaufe he was confcious that he had no right to make any. Knowing that the city was in poileflion of legal means of exertion, he calls upon it to carry thofe means into execution; but feeling alfo that the counties were in the lawful poflefiion of none but what had been already called forth, he addrefles them only in the way of advice, to confider what would be the moll eligible mode of encreafing their powers of defence. It fhould feem from the conduit of thofe who have lately fupported the minifter in his pro-^ pofal of fubfcription?, that they were fully fen-. E 2 fib fible that this was the only conclufion to be drawn from the letters themfelves. No other fa- tisfa&ory reafon can be given for that curious artifice of fophiftry to which they had recourfe, I mean the artifice of collecting the intent of thofe letters, not from the plain expreffions of the letters themfelves, which they were evidently confcious would not bear the conftru&ion they chofe to give them; but from the various anfwers which were fent from the different quarters whither the letters had been addrefled. In order to illuftrate in the moll forcible manner the ideas which have arifen in my mind on this fub- jedr, I will beg leave to put a cafe, perfonally, which every man may anfwer for himfelf. I will fuppofe the cafe of two perfons, one of whom fimply confults the other as to the beft mode of relieving himfelf from a prefcnt ftate of poverty, and that the perfon confulted hap- pening to be of a profligate difpofition, recom- mends the murdering and plundering of the firft wealthy perfon he may chance to meet. It ap- pears to me, that after the example of fuch fo- phiftical reafoning, the unfortunate being to whom fuch advice might be fo accidentally ad- drefled, though he were filled with the utmoft abhorrence for fuch crimes, might, upon an equal foundation of reafon and juftice, be charged as a robber and an affaffin, as the precedent of 1782 be ( 29 ) be ftigmatized for foliciting fubfcn'ptions, becaufe fome were proffered, in anfwers to letters which contained not one fyllable referring to fuch con- tributions. But, as if the injuftice of conclu- iions drawn from fuch a fource was not fuffi- ciently glaring, not only the collection of anfwers was partially produced, but even the anfwers which were brought forward vt&t partially quoted. You, Gentlemen, who are diftinguimed orna- ments of your profeffion, are not to be now told for the firft time, that evidence, when mutilated in any degree, carries no weight with it in a court of jufticej but when that mutilation is evi- dently the work of the parties themfelves, does it ever fail to roufe the indignation of the court, and to flamp with difgrace the man who has at- tempted the deception ? God forbid that the public mould meet with lefs juftjce than an in- dividual ; they are at leaft entitled to equal at- tention, and not to lefs rejpeff. But in regard to the queftion, as it is affected by thefe anfwers, it is at prefent highly favourable to the caufe cf the people. The letters appear to have been only letters of enquiry ; miniflers have affirmed that they were letters of felicitation; and this they infer from the tenour of particular parts of felecJed anfwers. But when thole who make fturdy aiTei'tions, at the fame time refuje to produce what they call proofs, while they are known to have ( 30 > have the neceffary evidence, if any fuch evidence really exiits, in, their own poffeffion, they afford a complete prefumptive teftimony againft them- felves, in favour of every perfon who contradicts them, upon any appearance of foundation. It has been afTerted on the other hand, by thofe who conducted the meafure of 1782, that in thefe anfwers, fome gave an account of what had been done in former times, fome what had been lately doing, fome what they propofed to doj in fhort, fome giving one advice, forne another. Indeed thofe exracts which have been produced have no tendency to contradict this petition; on the con- trary, they rather ftrengthen it. Confcious, again it mould feem, that the inferences drawn from thefe anjwers to the letters, were directly contrary to thofe war- ranted by the letters themfelves ; not content with applying partial quotations and refuting complete inveftigation, they expect to bolfler up their argument by an affected concern, that they are unable to confirm their aflertians by the evidence of thofe replies which were pro- bably written to fuch anfwers ; becaufe, fay they, fuch replies are not now to be found in the office*. Such an argument, it mutt be confeffed, may, with great propriety, be ufe4 * App. (D.) to? by the prefent administration, if we reflect upon the little hefitation with which the Se- cretary of State for the home department throws upon his office the blame of a fup- pofed inaccuracy^ as unprecedented as it is un- accountable. It would certainly be very ex- traordinary that no copy of thofe anfwers mould be to be found in the office, if indeed any fuch anfwers had been written, especially when it is clear, that every, other paper relative to this trani- aclion has been preferred with the greateil exaclnefs. And if any fuch replies had been written, admitting that the office copy might have been mifiaid, it would be ftill more lin- gular, that not one fhould have been traced and produced from among the various dependents and wide connexions of government, to fomeof whom fuch replies mufl have been addrefTed. So that we may, without any extra-ordinary exertion of faith, give full credit to the minifter of that period, who declared lately in his place, thai: not one anf&fr was ever ^written: for what flronger proof can exill, than fuch complete iiience, to mew that this meafure could cn)y be confidered by thofe who fee it on foot, to be the beft means of obtaining information. If the object of the minifters had really been fomething more than mere enquiry, is it corfiftent with common fenfe to fuppoie, that he would have contented ( 3* ) contented himfelf with thofe advantages to bd derived from the fuggeftions or information communicated to him, when it is evident, from the anfwers in general, that the zeal of the country was prepared for great and well in- tended exertions ? Is it probable, that if fub- fcriptions had been his object, he would have hefitated to accept them with gratitude, when the offer was not only actually made, but when the offer fo made was alfo purely voluntary? Is it likely that he would have neglected fo fair an opportunity of encouraging the pa- triotifm of others, by praifing the readinefs of thofe who had fet fo laudable an example ? Upon a review of thefe arguments, I do not fee what further reafoning is requifite to pro- duce a, clear convidion, not only that this letter of Lord Shelburne was a mere letter of enquiry, but that it was fo eonfidered by thofe to whom it was addrefled, and confequently, in every refpect utterly inapplicable as a prece^ dent to confirm the propriety of the prefent meafure. But as truth cannot be tried by too many lefts, let us take another line : let us fuppofe for a moment, that inflead of being a plan to be adopted or approved, as the letter Jays, that it was a plan already adopted; in which cafe I do not defpair of being able tcr (hew, that thefe two plans of 1782 and 1794 do t 33 ') do not agree in any one point j ' buf, above all, in the principal point which creates the prefent queftion, vrz. that of fubfcriptions. i ft. According to the plan of 1782*, tha officers were to be appointed fiom among the gentlemen of the neighbourhood, by commiffion from the crown, or the lord lieutenant, but at the recommendation of the chief magiftrate of the town in which the corps mould be raifed. Ac- cording to that of 1794* the officers are to re- ceive their commiffions from the crown, without any recommendation whatever* 2d. According to the plan of 1782, it was intended that the officers fhould be poflefled of fome certain qualification. According to that of 1794, none is to be required. 3d. According to the plan of 1782, the times of exercifing the men were to be fo fele&ed asnot to interrupt their refpedtive labours. According to that of 1794, thofe periods are to be fixed at the mere will of the crown, by a warrant from the king. 4th. The plan of 1782, abfolutety retrains the employment of fuch corps, except in cafes of actual invafion or rebellion ; that of 1794, per- mits their being employed on fuch occafions, without, forbidding fuch employment on any other account. * App. Ed. (F,) F 5th* ( 34 ) 5th. The plan of 1782 throwt the whole expence upon government j and by propofing no other mode of fupply, creates the neceffity of a previous application to parliament. That of 1 794, by propojing a fubfcription *, while it charges government with the expence, furnishes it alfo with a pojfible means of defraying that expence in~ dependent of parliament. , You, Gentlemen, may perhaps argue, that thefe are cobweb dijtintfions, as a noble Lord was pleafed to call the difference between fubfcribing a mufquet, and fubfcribing a guinea to buy a muf- quet | or, as it was ftated to the Houfe of Com- mons, between fubfcribing money and money's worth. If tbofe diflinclions are but as accurate and as powerful as that which constitutionally exifls between the cafes fuppofed by the noble Secretary of State, and thofe who fupported the meafure in tjie Lower Houfe, I am confident I /hall never have to blufli for the flimfey texture of jny rcafonings. The fad is, that this cobweb diftinclion conftitutes the true queftion of debate; it" brings forward the main point of fubfcriptioni it involves the caufe of all danger, the means of extra parliamentary fupply j and although the .people of England may fee no caufe of apprehen- fion in a guinea fubfcriftion, the precedent, if un- *A PP . (G.) condemned, ( 35 ) condemned, may be cited hereafter to fandtion the fubfcription of a million of guineas. It is a do&rine replete with the moft fatal confe- quences. If the people fubmit, it muft produce defpotifin j if they refift, it is but the harbinger of anarchy. Let thofe who maintain fuch po- fitions, look a little to the events which may fol- low the attempt to eftablifh fuch doclrines, Whe- ther the profpecl: prefents to their view their own flavery, and that of their fellow citizens, or whe- ther, in the diftant refiftance of a multitude en- raged by repeated opprefiions, they furvey the probable ruins of a pile, the pretended object of enthufiaftic admiration, let them paufe a moment, and confider what, in either of thefe events, will be the reflections of their confciences. In fuch a fituation they muft feel what they have them- felves occafioned j and though the refentment of an offended people fhould confign them to that deftru&ion they intended for others, flill the means of expiation would bear no proportion to the magnitude of the crime. But let us, before we drop this fubjed of the precedents, examine a little this cobweb diftinction, and fee whether in reality it will not bear a little more brufhing than is neceflary to clear away moft other cob- webs. The queftion which has been advanced, and which the upright guardians of our freedom, have fuffered to pafs uncontradi&ed, is, that F a there ( 36 ) there is in fubftance no difference between a con- tribution of any given number of mufquets, and one of a fum of money to purchafe a certain quantity of arrpis. Very few words will be fuffi- cient to point out the diftincftion, which is nothing iefs than the diftiniftion between that which is legal and conftitutional, and that which is illegal and unconstitutional. It ought to be remembered, that it is the fojfibility of evil which conftitutes the^unconftitutional tendency of every meafurej and therefore, until we can dernon- flrate the ; pofiible evil which may arife from any particular proportion, we are not authorized to hold forth that propofition as hoftile io^ur con- ftitution. I will put the cafe of accepting {hips upon the fame footing with the acceptance of a iland of arms. The noble Lord who has made this queftion, will probably tell us, that an ac- ceptance on the part of the crown, of a (hip of war, from one of its fubje&s, can be productive of no pofTiblc evil. We will readily grant this aflertion to be true, fo long *as the king can get neither men to man that Ihip, nor money to pay thofe men, without the affiftance of parliament ; but if the fubicription is a fum of money, though the fubfcribers may have given it for a particular purpofe, ftill if the crown is difpofed to appro- priate it to any other, thofe who granted the money, in this cafe, have no means of controul- ing < -37 ) Ing or preventing fuch a mifapplication. That power of controul and prevention relides only with the Parliament; and it is by poffeffing the file power of fupplying the wants of the crown, that they are enabled to exercife fuch an autho- rity. Suppofe the cafe of a great armourer of- fering as a voluntary prefent to the king, a fland of ten thoufand arms. I am not aware of any principle of the constitution which would be vio- lated by the acceptance of thofe arms, for they are perfectly harmlefs until they are put into the hands of foldiers; and foldiers can be by no means* constitutionally raifed without the le- giflative fandion. The levying a body of men without fuch fandlion, is illegal, becaufe thofe men may be immediately, inflantaneoujly employed to the moft dangerous and unconftitutional purpofe. Upon the fame principle it is that money cannot be raifed but by the fame authority. It is money which gives the means of exertion.; and money acquired independent of Parliament, prefents the * Whenever any doubt has arifen refpe&ing the power of the crown to raife, in time of war, a greater number of men than what has been voted by Parliament, the arguments in favour of this prero- gative have always been drawn from the fuppofedimpoffibility of making />rpaying fuch levies without money > and a conceffion that no nioney can be obtained without the affiftance of Parliament. This, if it were true, tyould, on the, part of the conftitution, be nothing lefs than a mockery ^ n infulting triumph over the weaknefs of the crown, by telling the Jdng he may do what he pleafes, while it is previoufly fettled that he can, in fad, do nothing. 300962 means ( 38 ) means of exertion independent of the fame au- thority. But the mere pofleffion of a ihip, or a ftand of arms, cannot produce anyfuch effect; if it could, at the clofe of every war, the (hips in- flead of being laid up fhould be all burnt, and the arms inftead of being carefully laid afide fhould be all broken to pieces. Let us now examine this queftion, as it is re- ferrable to conftitutional principles. The confli- tution of this country, in placing the purfe in the hands of the commons, has two diftinft objects in view. The firft is, to prevent the fubjeft from being opprefTed by unnecefTary burthens; the next is, to check the executive power in the exercife of its prerogative of declaring war. Whenever the commons pafs a bill of fupply, they at the fame time, except in fome fpecific cafes, determine alfo to what particular purpofes the fums fo granted, mall be applied. Jealoufy and diftruft are fo pointedly the chara&erftic fea- tures of this principle, that my only aftonifh- ment is, from whence the doubt can have arifen as to the unconftitutional tendency of the mea- fure ; for I am clear that no means can be in- vented, by which the crown may attempt to obtain money from the fubjedt without the previous fandtion of parliament, which would not dire&ly militate againft one or both of thefe objeds. It is true, that that cannot be coniidered ( 39 ) as a burthen which is fo far given voluntarily that it maybe witholdenj and therefore granting for the prefent thatthefe fubfcriptions are fiddly volunta- ry, that every fubfcriber is confcious within himfelf that he is ading under no compulfive influence, the firft of thefe principles which I have mentioned, viz. the prevention of oppreffion, does not im- mediately appear to be invaded ; fince the only definition of oppreffion with which I am ac- quainted is, the being compelled to do fome- thing, which by choice we mould otherwife avoid; or the being prevented from doing that which, were we matters of our own actions, we mould wifh to do. This conceffion, which. is merely temporary, I have made, becaufe I c^n conceive cafes wherein the gift ftiali be perfectly "voluntary. I do not intend by any means to allow, that it is fo in this inftance; on the contrary, I truft that I mail be able tp prove, that the prefent cafe is attended by circum- ilances which partake fo much of the nature of compulsion, that it is even within the reach of the firfl objecl: of our conftitution, which retains the purfe in the power of the commons, in order to prevent the fubjecl from being op- prefled by unneceffary burthens i but I do poli- tively afTert, that no cafe can arife in which a voluntary fabfcription of any kind, and for any of the purpofes of government, will not militate again fl ( 40 ) againft the right of the parliament to controut the executive power, fo as to check it in the exercife of its prerogative of declaring war. It was a faying worthy of the character from whom it came, our firfl Edward, that " that ' which concerned all, fhould be agreed to " by all.'* It is a maxim of the moft liberal' defcription, and capable of the moft extenfive application. That which concerns all, mould be agreed to by all ; and how can fuch con- fent be expreffed, but through the conftitu- tional voice of the parliament 5 or, are there any meafures of a public nature which the crown can adopt, or any grants which can be rnade, which do not immediately concern the community at large? Had this queilion been put to Lord Coke, he would probably have, anfwered from his own writings , " The com- ** monalty of England cannot grant but by par- liament*." Whenever there exifts a general difpofuion in the people to make liberal contri- butions in favour of any particular meafure, what means of exprefnng that difpofition can they ufe fo confiftent with their own dignity, or with that of the firft executive magiftrate, as through the medium of their reprefentatives ? Or, at what moment can taxes be impofed with * 2 InO. 530. left lefs odium, or with more efficacy ? The fyftem of begging, is a difgrace to the crown from whence it originates, and injurious to the public caufe, as it tends to promote an imprerfion that the great conftitutional fource of fupply, by par- liamentary taxation, is nearly exhauiled. But, fuppofing the facT: really to be, that the people in general are well difpofed towards fuch vo- luntary fubfcription, the crown can have no ground for knowing that circumftance, but the ground of prefumption ; becaufe the people cannot collectively exprefs their fentiments ex- cept through their reprefentatives ; and no in- dividual can in his private capacity, and of his own mere authority, conftitutionally perform any aCt in which the intereft of the whole community is in any degree concerned. It is much oftener in our power to prevent in- juries, than it is to repair them when com- mitted -, and it is the great property of wifdom to forefee difficulties, and by that means to be enabled to prevent misfortune. Upon this prin- ciple it is, that one of the chief objects of our conflitution, has ever been in the firft inftance to prevent the executive authority from obtain- ing money without the confent of Parliament ; becaufe, although it claims at the fame time the right of controuling the difpofition of the money which is granted, yet it is well aware that it has no means of enforcing that claim, but by its G power ( 4* ) power of refufmg all future fupplies, in cafe that claim is difallowed : and the real danger to the constitution, or the real injury done to the peo- ple, does not depend fo much on the temporary privation of a fum of money, as it does upon the manner in which the money is applied : for it is eafy to conceive a beneficial appropriation of fums obtained by unconstitutional means; in which cafe, though the example may be pernicious, yet the effect actually produced in practice, is for that time advantageous. But if the King can legally receive from certain of his fubjects voluntary fubfcriptions, what mode can Parliament effec- tually adopt to prevent any dangerous difpofition of that money, fuppofing it to be the inclina- tion of the crown to employ the produce of fuch fubfcriptions in any manner injurious to the coun- try, and contrary to the expreffed fentiments of Parliament ? They may remonftrate, but if the crown is obftinate, they cannot enforce that re- monflrance ; they have parted with the means of prevention ; they have given away that inefti- mable barrier of the conftitution, which fecures to the people a tranquillity, fuch as the ambition of a fovereign cannot interrupt without their con- nivance ; they have put arms into the hands of the enemy, and they have no means of refinance left but that of arming themfelves. Suppofing this mode of application to be legal, ftill ( 43 ) {[ill the proof of the public approbation of the meafure it is intended to promote, mufl depend upon the univerfality of the fubfcrip- tion j but it does not follow that the fuccefi aimed at, will alfo depend upon the fame circumftance : for it is eafy to fuppofe a cafe where the private intereft of a combination of wealthy individuals, when in unifon with the wimes of the fovereign, (ha.ll call forth fuch ilrenuous exertions as may enable the crown Co effect its own purpofes, and to gratify the views of fuch perfons at the expence of the interefts of the reft of the community. I con- ceive that the exiftence of fuch a pofiibility, is fufficient to bring the cafe within the re- flri&ive influence of our laws. Far be it from me to infinuate, that fuch is the difpo- fition of our prefent gracious fovereign j but the hiflory of paft times teaches us, that we have had fovereigns of a very different cha- racter, and the hiitory of human nature gives u? reafon to conjecture, that fuch difpofitions may again fill the feat of royalty. Then will it be that the pernicious conlequences of this doctrine will be pradically felt, and pofterity have to curfe that iervility, which could fa- crifice the law of the land to gratify the ca- price and ambition of a minifter. If the jea- lous temper of the conftitution is ever to be G 2 called ( 44 ) called forth, it cannot be exerted at a more proper moment than when a King, even the beft, is attempting to obtain money from pri- vate individuals without the previous confent of Parliament, and without firfl communicating to Parliament the object of its deftination. The conftitution fuppofes, that where the views of the executive magiftrate are laudable, the Par- liament will join in promoting them ; but their power would be very nugatory, if they were not armed with a preventive authority. It would be to but little purpofe to inveft them with the power of judging of the laudability of plans, if they had not alfo the means of cruming the execution, in cafe they conceived them to be injurious j and if we grant for an inftant, that the King may find means confti- tutionally to obtain money under any device whatever, without the concurrence and affifl- ance of Parliament, in that conceffion we de- prive the Parliament of their preventive power, and grant to the King the poffibUlty of doing without any Parliament at all. The great Algernon Sidney, in one of his di. courfes on Government, fays, that " one of the "*' reafons of importance to thofe nations who, ' though they think fit to have Kings, yet de- " fire to proferve their liberty, which obliges " them to let limits to the power, glory, and riches ( 4S ) " riches of their Kings is, that they can no '* otherwife be kept within the rules of the " lawj becaufe, adds he, fuch is the propen- " (ity of mankind to corruption, that if he " whofe intereft and will it is to corrupt them, " be furnished with the means, he will never *' fail to do it." Who can doubt the juflice of this obfervation, or who doubts the defire of an Engliftiman to preferve his liberty ? The means of prefervation eftabliftied by our confti- tution, are corre&ly Hated in the foregoing paf- fage. The power of the crown is kept within the limits of the law, by its riches being total/y derived through, and wholly dependent on the will of Parliament ; and its means of corruption are completely cut off, fo long as the conftitution uniformly oppofes every attempt at an extra- parliamentary fupply : but the inftant that the limits of the royal revenue are not dependent on the will of Parliament, the inftant that the means of corruption are placed within the grafp of the crown, by its being enabled by any device to obtain and to appropriate fums of jnoney without a previous Parliamentary fanc- tion, that inftant the liberty of the people muft expire; or if it is kept alive, its exiftence muft depend on exertions calculated to produce the moft violent confequences. Thefe arguments Are all applicable, I conceive, to a cafe yet more ( 46 ) more ftrongly favourable to the pretenfions of the crown, than that particular cafe which has given rife to the prefent difcuffion - y they are, I appre- hend, declaratory of the incapacity of the crown, even to receive any fubfcriptions which fhall have been ftriclly and bona fide voluntarily offered by the fubjedl. But in the prefent inflance the cafe is infinitely ftronger againft the crown, becaufe here the crown has been the Jirft mover j the Aibfcriptions have been actually fet on foot under the authority of a motion from the crown, without any application or intimation, either previous or iubfequent, to Parliament for their concurrence. The diitindion which has been made in this cafe, by fome diftinguilhed characters is, doubtlefs, taken with infinite ingenuity -, and certainly the circumftance of the meafure having originated in a recommendation from the crown, creates a ftill greater violation of the principles of the confti- tutian, than if it were fimply the cafe of the crown's receiving a fum of money raifed by a mere voluntary fubfcription* where the plan had been propofed by the fubfcribers themfelves, without any intimation whatever from any other quarter. That fuch receipt and appropriation is greatly exaggerated by any attempt on the part of the crown to promote the meafure, I have no doubt; but I cannot for a moment allow, that even the voluntary ( 47 ) voluntary fubfcription, though infinitely lefs likely to be productive of ferious inconvenience, is not totally incompatible with the fpirit of our conftitution ; becaufe it muft be granted, that any means by which the crown is enabled to difpofe of money independent of parliament, in the ex- ercife of its dominion over England, is highly fubverfive of the rights and liberties of the people. The pofleflion of riches is neceffarily attended by power, and the criterion of defpotifm has ever been regulated by the power of obtaining money. Wherever that power is, there the fupreme au- thority muft ultimately refide, becaufe the power of railing money involves in it alfo that of dif- pofing of the money when raifed; and whether the fum be levied in the form of a tax under the fanction of parliament, or by the perfuafion of the fovereign under the name of a benevolence or fubfcription, the influence to be derived from it muft flow from the difpofal of it. There is in this country but one body, to which the confti- tution has entrufted an unlimited power, and that is the fupreme legiflative aflembly of the kingdom, compofed of the king, the lords fpi- ritual and temporal, and the commons, or repre- fentatives of the people. They, and they only, when afTembled in their legiflative capacity, arc poflcfled ( 48 ) pofTefled of that undefined and abfolute authority, which enables them to exclaim with effefl, " Sic volo, fie jubeo, ftet pro ratione yoluntas." The fpecial prerogatives or privileges which have gradually annexed themfelves to thefe fepa- rate orders, each in their refpective capacities, are all reflricted by certain fundamental principles, which cannot be violated without a manifefl in- jury to the conftitution. By thefe principles it is that thofe prerogatives of the crown which do exift, are fo defined and limited as to be rendered incapable of opprerTion $ and in conformity to the fame principles it is, that others which the ambition of princes might induce them to claim, are not fufFered to exift at all. " Prerogative," fays Mr. Locke, " is the difcretionary power of " acting for the public good, where the pofitive laws are filent." If then the conftitution was abfolutely filent as to the moft advantageous mode of raifing money, if indeed there was no authority under the fanction of which the ap- propriation of the money when raifed was to be directed, we fhould in that cafe have fome rea- fonable ground for prefuming that, becaufe it was requifite for the well being of the flate, that fums of money mould be regularly obtained for the purpofes of government ; and becaufe no fpecific mode, by which fuch fupplies fhould be raifed, ( 49 ) raifed, was marked out by the law, and no au- thority eftablimed, by which the expenditure fhould be regulated, therefore the apparent ne- ceffity of fuch meafures naturally implied the exiftence of a difcretionary power in the crown for this purpofe. But, is the conftitution indeed iilent on this head? Is our fyftem of fupply, in fact, fo undefined as to give any colourable pre- teniion for the exercife of this prerogative on any f jch ground ? or rather let me afk, whether, in the whole frame of our government, there is anyone point which has been examined with fo much attention, or decided upon with fo much jea- loufy, as that particular article, the difpofal of the public purfe ? Do not the commons 07 all occaiions of fupply, claim, and is not their claim invariably allowed, the fole arrangement on this fubject ? Do they ever fufFer the interference of the lords to have any effect ? Is there an amend- ment which could be made by the lords, which when returned to the commons, would not pro- duce an inftantaneous rejection of the bill ? If the commons, then, claim fuch an unlimited privi- lege in fettling all modes of fupply, as not to fufFer even an amendment by the lords to pafs without rejecting the bill in toto, is it confiftjnt with common fenfe, to fuppofe that conftitution which grants to them fuch a prerogative, intends to circumvent the whole plan of liberty, by H allowing ( 5 ) allowing to the crown, not only to devife means of raifing a fupply, but alfo to direct the appro- priation of it without a parliamentary fan6lion ? To clofe this divifion of the queftion, I am con- fident that it would be impoflible to ftate any one point in our conftitution, in which the law, and the reafons of that law, are fo clear, and in which any interference on the part of the crown would be fo juftiy odious, as in that which relates to the medns of raifing money. The next and lafl point which arifes in this branch of my argument, as referring to the principles of the conftitution, unconnected with the actual practice on this fubjeft, and inde- pendent of the law of the land, is, that it is im- poffible for the crown constitutionally to move the fubjed to a voluntary benevolence ; for this reafon, that any recommendation from the crown, carries with it an influence nearly approaching to com- pulfion. And this particular part of the queftion has its foundation in fomething, if poffible, even flronger and more impreflive than any force which reafoning alone can apply ; it is capable of a folu- tion by an appeal to every man's own heart. Let every one confult his own feelings, and then declare how he mould chufe to refift in his own proper perfon, any requeft which might be made by the crown, however inconvenient the com- pliance might be to his previous arrangements, or or however inconfiftent with his ideas of that conduct which ought to be obferved by the ex- ecutive magiflrate, as prefcribed by the confli- tution 3 and whether, in fact, he fhould not con- fider fuch a requeft to him, in the fame light in which Sir John Eliot appears to have viewed the loans of Charles the Firft, when in his petition from the Gate-houfe, where he had been con- fined for not acceding to the requisition of a loan, he ftiles all fuch requefts to the fubject, tacit and implied commands ? It is true that, in the prefent inftance, there are no legal means by which any perfon can be compelled to fubfcribe j but are there indeed no other modes of compulfion by which any parti- cular effect may be produced, fave thofe which the law has provided? are there not means which are contrary to law ? and are there not alfo means which poffefs different mades of criminality (for nothing can be illegal without being in fome degree criminal) by involving different degrees of compulfion? If there is any one circumftance at- tending this requifition, calculated to counteract the inclination of a man's mind as it is directed by his reafon, fuch circumftance, whatever it may be, amounts in its effect to a compulfion, and furnifhes an additional ground for determining that the meafure is directly invafive of the prin- ciples of the conftitution. Let us trace this H 2 queflion ( 5' ) queftion by examples. I will fuppofe a body of private individuals fpontaneoujly to alTemble toge- ther, and to agree among themfelves to promote a fubfcription, to be difpofed of under their im- mediate infpection, for the augmentation of boun- ties for the purpofe of facilitating the levy of a body of troops which has been ordered to be raifed by authority of parliament. Such an undertaking would, I conceive, be ftrictly conftitutional and legal, becaufe it originates with thofe, whofe opi- nions or wimes cannot be fuppofed to carry with them an influence capable of inducing any other perfon to forego his own inclination, that is, to adt under any degree of compulfion, not warranted by law; and becaufe the object to be promoted, has previoufly received the approbation of parlia- ment. Befides, in a cafe of this fort, the poffibi- lity of mifapplication to any dangerous extent, is fo very remote, and the means of punimment and redrefs are fo inftantaneous, that it is unneceflary for the conftitution to exercife its preventive power, and to forego the probability of a certain advantage. I will fuppofe another cafe, where a fubfcription mall be fet on foot by a fociety of private individuals, for the purpofe of railing and paying a body of troops, without the previous fanction of Parliament. Such ameafure would cer- tainly be highly unconftitutional and illegal, even though the object of it ihould be in itfelf inno- cent. ( S3 ) cent. The violation of conftitutional principle in fuch a meafure would not depend on the fact of compulfion ; the meafure itfelf would, under fuch circumftances, be nothing lefs than an af- fumption, without the aflent of Parliament, on the part of private perfons in their felf-created capacity, of the exercife of one of the duties of the executive magiftrate, in the exercife of which duty thai magiftrate muft himfelf depend on the will of Parliament for the means of its execution. Now what is the cafe in the prefent inftance? The crown unites itfelf to a body of individuals for the purpofe of promoting fubfcriptions with- out the previous fanction of Parliament; the pro- duce of which fubfcriptions may afterwards be applied, equally independent of the will of Par- liament, to the raifing and paying of troops. Here then is an inftance yet more unconstitutional than the laft. Let us fee in what its greater un- conftitutional tendency confjfts. It cannot be becaufe it is calculated to give to the crown the difpofal of a purfe uncontrouled by the legillature; becaufe that fimple effect might be equally pro- duced from the laft example; fince the purfe might as eafily be laid at the king's feet, as its contents expended in the collection and payment of an armed force. The truth is, that the addi- tional violation in this inflance, depends on the addition of the royal influence, which, to every periou ( 54 ) perfon at all acquainted with the difpofition of the human mind, muft be acknowledged at all times to carry great weight with it, but to be particularly calculated to produce an effect very different from, or at leaft infinitely more extenfive than that which would ariie from the inclina- tion being left to flow in its own natural channel ; at a time too, when the imaginations of man- kind are heated by every kind of artifice, and when thofe who can look on with an impartial and difinterefted eye, cannot breathe even a figh of oppoiition to any one meafure of government, without incurring the odious jftigma of faffiions republicans. The relative duties between a king and his people are, command and obedience : and the fovereign ceafes to be a king when his fubjecls ceafe to obey. In defpotic governments, the command iffues directly from the fovereign; in a free ftate it is controuled, not by the people, but by an umpire chofen between the parties; and this umpire is felecled, not becaufe the people, if they think fit to exert it, have not the power to prevent oppreffion, but becaufe that power is likely to be exercifed with more discretion by a body which, being raifed above the reft of the people by the importance of its functions, and by being confcious of its own confequence, is thereby removed to a greater diilance from the influence ( 55 ) influence of thofe turbulent paffions, and often-* times unreafonable prejudices, which fway the conduct of every multitude, and at the fame time, by being brought nearer to the level of the prince, is placed further beyond the probability of being dazzled by the luftre of royalty, and is by that means rendered lefs likely to be perfuaded into the adoption of meafures hoftile to the true interefts and liberty of the people. Whenever the crown fhall think fit to difclaim, in any degree, the fuper- intendence of Parliament, the intervention of the conftitutional medium of intercourfe between it- felf and its fubjects, it muft not be furprifed if the people mould follow the example, and take the management of their own affairs into their own hands. Such I take to be the intent of our conftitu- tion. The queftion then {imply is, whether the crown, by any application to the people, other- wife than through the medium of Parliament, is not guilty of exerciiing an influence as inconfift- ent with our maxims of government as any other attempt would be whofe objed: was to exercife an independent authority. The queftion here is not, whether a man can refill the demand phy- fically he certainly can; but the point is, whe- ther a -iran, vvho, in his heart, difapproves of the meafure, may not be inf* icnced by lame con- fufed notions of apprehenfion, which (hall in- duce ( 56 ) duce him to act in contradiction to his inclina- tion ? This is a queftion which every man mud decide from his own feelings. Upon thefe feve- ral grounds, and from a perfuafion that fuch notions do exift, it is, that my mind has adopted a complete conviction, that it is impoffible for the crown to take any fteps without the previous fan&ion of Parliament, towards exciting a vo- luntary contribution, by private individuals, with- out incurring, in fome degree, the guilt of violating the fundamental principles of the Englifli conftitution. We now come to confider the merits of this queftion as they depend upon the conftrudion of the ftatute law of the land. Whether the right of taxation can exift in the crown, independent of Parliament, is a point which has now been long and happily fettled. The various unfuccefsful ftruggles on the part of the executive power, to obtain this high badge of authority, are every where extant in our hiftories; and the final triumph of the people on every occafion is teftihed by (blemn ratifications of their unalienable rights by fucceffive parliaments. But though the pofleffion of this power was prevented, yet the crown ever retained an in- clination to exercife it : and as we eafily trace from the variety of ads relating to the fubjed, the many devices to which the clergy referred, in ( 57 ) in order to elude the provifions of the flatutes of mortmain; fo in regard to this fubjedt, *our annals are replete with various inftances in which the ingenuity of miniflers was exercifed with a view to obtain money, without the neceffity of reforting to Parliament. One among the many inventions on this fubjedt, to which the fubtlety of ftatefmen gave birth, was, that of benevo- lences ; or, as they were fuppofed to be, volun- tary contributions of the people towards amfting the meafures of the government. It is the hiftory of the progrefs, and the iffue of this invention, which we have now to trace through the legal records of this kingdom : and it is no fmall matter of encouragement to me, to find, that in pur- fuing this fubject, I mail have very little occafion to deviate from that track in which the traveller is directed by thofe great conftitutional land- marks, the rolls and records of Parliament. In the earlier periods of Englifh hiflory, when the royal revenue was chiefly fupplied from the profits of feudal fervices, we find continual ftrug- gles between the king and his people; the one to preferve and encreafe thofe exactions, to which according to the purity of that fyftem the lord was entitled, the other to deftroy, or to diminish what was always oppreflive, but which, when exercifed with any degree of rigour, became intolerable. But at the fame time, as thefe exao l tions, ( 58 ) tlons, however fevere, were in general cfue of right^ when the people prevailed in obtaining fome remiffion of fuch bard&rps, the indulgence is certainly to be considered as proceeding from the fovercign,. whofe lawful prerogative k un~ doubtedly then was, to exaft the payment of all fuch aids as were incident to the feudal fyftem. The feudal regulations being all calculated to keep fociety together after the manner of one great family, and having the means of defence principally in view, have ever been characterized by a military tendency; and having been en- grafted in this country upon a fpirit among the people already prone to- liberty and warfare, they have, perhaps, greatly contributed towards en- creafing that fpirit, which has ultimately triumphed over the fyftem which cherifhed k. But as the origin of feuds was in ks> nature military, fo it? provisions never appear to have had in view the poffible exigence of commerce. Accordingly, as this great fource of public opulence, and confe- quently vl public revenue, encreafed, there gre\ tip with it a conteft between the crown and the nation, as to the mode of apportioning what was to be raifed from this new branch of wealth, for the public fervicej the king infifting upon his right of exaction, where no previous regulation had fettled the fubject, and the people claiming their privilege of confe&t, by the voiee of their repre* ( 59 ) reprefentatives. This point of exaction was early given up by the crown; and Sir E. Coke in fpeaking of the flatute de tallagio non concedendo* , fays, that it was but the explanation of that branch of Magna Charta relating to merchants, which itfelf binds the king to exaEl no duties but fuch as are due ofoldcuflom. Still however, ano- ther queftion arofe, whether, although the king could not exact but by authority of Parliament, he might not accept of fuch additional duties as the merchants themfelves mould voluntarily conferi t to pay. Out of this difputed point, I ap- prehend, the whole fyflem of benevolence has arifen. We will now trace it through a long feries of parliamentary proceedings, beginning with the 25 of Ed. 1. 1 The three la/I chapters ; of this ftatute contain, rft, a recital that the people were apprehenlive that divers aids and talks, which they had given of their own grant and good will, (howfoever they ivere inade) might turn to a bondage ; becaufe fuch taking by the officers of the crown, might hereafter be found upon the rolls, andly, An enacting claufe, that no fuch aids, talks, or prifes, lhall be drawn into cuftom on any account, or on any pretence what- ever. S^ly, That for no bufinefs, mall fuch man- jier of aids, talks, or prifes be taken, but by the * 2 Inft, 59. t App. (H.) ( 60 ) common a/Jent of tie realm; with a faving claufe of fuch aids as were due by reaibn of tenure. 4thly, The recital of a particular grievance, viz. a toll of 405. for every fack of wool, which the fta- tute calls a maletout, and which, according to Sir E. Coke, is an exceffive, and in fome flatutes means an unjuft exaction. And 5thly, an enacting claufe, that no fuch toll {hall again be taken without the common aflent and good will of the- people, together with a faving claufe of fuch cuftoms as had been before granted by the com* monalty aforefaid. It appears by Sir E. Coke's expofition of this ftatute*, that the apprehenfions of the people originated in an idea, that the aids which they had granted for the defence of the country, or for fome other internal purpofe, might pof- fibly be drawn into an example, and exacted for the fupport of the king in his wars out of the realm, for which they at that time held them- felves by no means bound. To remove fuch ap- preheniions, parliament annihilates the poffibility of applying the paft, by enacting, that fuch aids fhall not be drawp into future examples; but in order to fecure the effects of this provifion, it goes one ftep further, and enacts, that for no bu- Jmefs fliall fuch aids be taken, but by confent qf * 2 InS. 528, Parlia? Parliament; by that means fecuring to itfclf the power of approving or condemning every meafure before it can be undertaken by the crown. How then can the doctrine of voluntary fubfcriptions, which has a tendency to make the king inde- pendent of Parliament, be fupported confident with the object of this ftatute, which is to bring the crown as much as poffible under the controul of Parliament, by giving to the Commons not only the guardianfhip of the purfe, but alfo a right of previoufly deliberating upon the purpofes for which the fupply is intended ? I confefs, it feems to me, that the provifions of this act, and the doctrines lately maintained, are fo incompa- tible, that the one cannot iland but by the other's fall. The next object of this Parliament was to remove an exifting grievance, viz. a toll of 405. pn every fack of wool, which Sir E. Coke tells us, had been impofed 'without the ajfent of Par- liament , and which he defines to be an evil toll or charge. We are not told how this charge was impofed, whether by an abfolute effort of royal authority, or by any other means, bearing an appearance of free-will ; all we know is, that the impofition, however it was made, was for that time refigned by the crown, though it was forne years afterwards refumed and defended, as we {hall find, though finally wifbwt fuccefs, upon the ( 62 ) the ground of having ^ztn freely granted by the merchants. The next ftatute which I fhall cite as tending to confirm the ideas I have ventured to offer upon this fiibjecl, is that commonly known by the name of the Statufutn de tallagw non conce* dcndo, pafled in the 34 Ed. I.* This ftatute ap- pears to hay.e been made in confequence of an attempted breach of the 25th of this king, and to be a confirmation of the incapacity created by jhat ad in the crown to take any grants but by authority of Parliament. The words of this ftatute are, that nullum tallagium, &c.ponatur feu levefur, the words being, as Sir E. Coke obferves in the disjunctive, fo *' as if it be fet by the king, " although it be not levied by him, but by a f fubjedt, as it was in the cafes aforefaid, it is '* within the purview of this ftatute *)-." I fub- rnit to the judgment of my readers, whether this disjunctive does not equally warrant the con- flruction, that although the impofition be not fet by the crown, yet if it is levied to its ufe, fuch an impofition is equally within the purview of fhia ftatute -, and if this conftrudion be right, the rneafure of fubfcriptions, even where it does not originate in a motion from the crown, being: ne^ O O verthelefs levied for the crown's ufe, is contrary f App. fl.) f 2 Inft, 541. ' A ( 63 1 to the intent of the 34th of Ed. I. This flatute further repeats the prohibition againft taking the maletoutof wool, on any occasion whatever. The next which claims attention is the 14 Ed. III. ftat. i.e. 21. * By this flatute it appears, that certain aids were due of old cuflom of certain commodities; that the cuftom on wool had been particularly limited by Parliament; that the Comrryons had intreated the King that no more than fuch ufual or li- mited cuftoms fhould ever be taken, and that this prayer had beer* granted: and that any fur- ther taking than what was fo fettled, fhould be contrary to law y is evident from what immedi- ately follows, where the King prayeth the Par- liament, nevcrtbelefs, on account of his great oc- cafions, that they would grant him for a fhort time fome additional fupply from the articles before-mentioned in the itatute. Upon due con- federation of this requcft, the Parliament confen&- to the King's demand, and grant him an addi- tional cuftom of 405. on every fack of wool, and alib an additional duty on fome other articles; flipulating, at the fame time, that' the grant ihould only continue in force for a period ibmething fhort of two years. To thefe terms the King accedes, and in the ufual form of art , * A PP . (K4- aft of Parliament promifes, that after the time fpecified, neither himfelf nor his heirs lhall demand, aflefs, take, or Jitffer to be taken of any EngliJJjman, more than the old cuftom efta- blifhed by law. Upon this act Lord Coke ob- ferves, that " the King granteth, that after the " time mentioned, he, nor his heirs, would " take any more than the old cuftom*." Upon the words of this ftatute, and the com- ment of Lord Coke, we may fairly be entitled to conclude, that it was not only contrary to law to ajk, but even to receive any thing, other- wife than with the affent of the other branches -of the legiflature. Let us lee how far this conclusion is fupported by the fubfequent con- duel: of Edward, and that of his Parliament. It appears by the rolls of Parliament, that in the i jth year of his reign-f-, which muft have been a Jbort time fubfequent to the expiration, of the period limited for the receipt of the extraordinary aids of 405. on every fack of wool, &c. Edward Jlill continued to receive this additional duty as a voluntary gift from the merchants. That the commons complained of this receipt as contrary to the ftatute, which granted only a duty of half a mark after a flated time, and as contrary to their rights, who mufl * 2 loft. 60. f App. (L.) be ( 65 ) be in the end the fufferers by fuch a voluntary conceflion of the merchants, and therefore prayed that the evil might be immediately remedied. To this requeft the King gave an evafive anfwer, by {rating, that this grant of the merchants could iiot ultimately charge the Commons, as they had tbemfelves fettled the faleable price of the feveral commodities, and that it would not be in the power of the merchants to encreafe the charge to their cuftomers. Here for the prefent the matter ended -, the Commons content with afTerting the illegality; the King fatisfied to evade their de- mand without abfolutely denying their right. And this complaifance on either fide is not to be wondered at, when we confider the high character and popularity of the King, and the infant ftate of parliamentary power as lodged With the Commons. Upon the fame autho- rity we find the Parliament again complaining, in the 21 ft year of this fame King's reign*, of his breach of the laws, by iffuing commiffions under the great feal for obtaining money without their previous grant -, and in the 25th-f~, the Commons again take up the fubject of the voluntary grant of the merchants. They repeat the grievance arillng from the tax of 405. and requeft that in future it may neither be de- * App. (M.) t (N.) JK. manded ( 66 ) minded nor levied, and that no commiffions fhould be iflued in confequence of fuch fingle grants, except in full parliament ; and in confi- deration of a compliance with this requifition, they offer to legalize this fublidy for half a year, or, perhaps, for a whole year, if the King is really in fuch grear neceflity. To this complaint the King pleads in excufe, the continuance of that extreme necefiity which firfl induced him to accept the offer j and this appears to have been fo far fatisfa&ory to the Parliament, that they confent to the continuance of this impofition for two years longer. In every one of thefe inftances we find the King feeking fome pretence for obtaining money from the fubject, without receiving it at the hands of his Parliament, and reforting to fuch inventions as bear, the greateft femblance of voluntary dona- tions. Yet, even in all thefe inftances, his Par- liament refufes to admit his pleas j and, though the fublidy was generally granted upon the ground of the crown's neceffity, yet ftill the precedent was always oppofed, as it might ferve for an ex- ample to after times. And in the 361)1 of Edward HI. the commons again renew their entreaties *, that in confederation of their libe- rality to the King and their readinefs to relieve his his neceffities, no extraordinary fubfidy fhall be levied after the time limited by them, only the ufual import of half a mark ; and that in future no impofnion on wool can be granted by the merchants, or any others, without the aflent of the Parliament. The anfwer to this petition of the commons is, " the King wills it," This trania&ion feems for a time to have ftifled all further attempts at voluntary donations. But the triumph of Parliament appears to have only given birth to another device; for the King, find- ing it in vain to contend for the prerogative of accepting gifts, had recourfe to the artifice of bor- rowing of fuch of his fubjecls, as mould chufe to lend him any furns his occafions might re*. quire. It mould feem that fo long as the King confined himfelf to accepting voluntary loans, the jealoufy of Parliament was not excited,. Probably, as they had originally grounded their objections to the voluntary grants of the mer- chants upon this principle, that fuch (Donations would ultimately fall upon the people from the additional charges which would be made in the fale of the commodities, fo the fame reafon for apprehenfion did not immediately occur where the means of repayment were previoufly fixed. Thofe nicer diftinclions winch have fince added further limitations to regal prerogative, and \yhich have ferved to augment the jealous dif- K 2 pofuion ( 68 ) pofition of the conftitution in regard to regal encroachments, were then probably unknown j their birth was coeval with the encreafe of our wealth, their growth has been proportionate to our progreffive importance in the fcale of nations. But when any acquiefcence tin fuch voluntary loans induced the King to advance one ftep further, and to attempt at fubftantiating this device into a matter of right, inftead of being what it was at firft, entirely matter of favour; when he proceeded to exercife compulfory means in order to obtain loans from thofe who, upon the firft requifition, endeavoured to excufe themfelves; we find the commons in- ftantly efpoufing the caufe of the opprefTed, declaring all fuch attempts to be a fcandal to the King, and againft the law of the /ana 7 , and praying, that in future all perfons reafonably excufing themfelves, might remain unmolefted. This circumftance occurred early in the reign of Richard II. and is proved upon the tefti- mony of the rolls of the Parliament of the 2d of that King*. I cannot pafs this period without noticing the fallacy of an aflertion made by Hume, in his 5th volume, where he mentions the en- croachments of Elizabeth upon the claims of * App. (P.) Parliament, ( 69 ) Parliament to the exclusive privilege of grant- ing money. He affirms in a note, that *' in the '* fecond of Richard II. it was enadted, that in ." loans, which the King {hall require of his .'* fubjects upon letters of privy feal, fuch as f s have reasonable excufe of not lending, may ."' there be received without further fummons, " travel, or grief. See Cotton's Abridg. p. 170. ." By this law the King's prerogative of ex- ." acting loans was ratified; and what ought to " be deemed a reasonable excufe, was ftill left in >' his own breaft to determine*." The hifto* rian lays great ftrefs on the word reafonable^ as implying a power in the crown to judge of the reafonablenefs, and accordingly to accept or rejed: the excufe. This miflake may eafily be accounted for, without impeaching the author's intentions. At the time when Hume wrote, the records were not in print; and he appears to have trufted to Cotton, who reje&s in his abridgment the preamble of the peti- tion, upon which the whole muft depend. For, although the Commons in the enacting part requeft the crown upon fuch occafions to admit all reafonable excufes, yet, in the pre- amble, they have previoufly declared, that all fuch attempts at exadion are to the great * Vide Hume, 460. ( 70 ) damage and fear of the poor Commons, to the Jcandal of the King, and againft the laiv of the land. I cannot conceive, that had Mr. Hume feen this record as it is now printed, he would ever have cited it as a ratification of the prerogative of exacting loans, lince it goes the length of affirming, that all fuch exactions are contrary to law; and, though it may after- wards defire the crown to admit all reafonable excufes, I mould fuppofe the crown would feel fome difficulty in confidering any excufe as un- reafonable in the teeth of fuch a declaration ; and, after all, though the crown mould deem the excufe unreasonable, ftiil it cannot enforce the demand, without fcandalizing itfdf, and vio- lating the law. After this period, the attempts to raife money by fuch means appear to have ceafed, and not to have been renewed until the reign of Ed- ward IV* : at leaft our hiftory~is either fijent on the fubjetfl, or I have not been able to difcover any tranfadlion of this nature until the fecond year of this prince ; when, accord- ing to Stowe's Chronicie-f-, he iflued letters under the privy feal for the purpofe of ailc- ing a contribution of this description, in order * Vide Parliamentary Hiftory. t Stowe's Chronicle and Hiftory of Cropland. to to enable him to raife forces againft Henry VL and which, this author adds, was liberally granted. In or about the I7th year of this King, the hif- tory of Croyland mentions, what is there ftiled a new and unheard of impofition, called a bene- volence, whereby every one might give what they 'would ', or rather what they would not ; and the fame authority adds its teftimony to the libe- rality which was manifefted in the large amount of thefe fubfcriptions. Certainly the author of this account was miftaken in his idea, as to the novelty of this device. The name might be perhaps then, for the firft time, applied; but clearly the invention was of a much earlier origin. This appears from the records of Edward III. already cited: and thofe contributions which were levied on the 3d of Edward IV. could not have been fanc- tioned by Parliament ; becaufe, if the filence of the rolls may be permitted to prove any thing, it proves that no Parliament was holden in that year. But, whatever might be the liberality of the people in their contributions upon thefe particular occaiions towards reliev- inor the neceflities of Edward IV. the fnirit of o J fubfcription feems foon to have fubfided, and the exaction itfelf to have grown into a fub- jecl: of complaint. For a very few years fub- fequent to this period, the device of bene- volence ( 7* ) Volences having been carried to an intolerable extent, Richard III. in the firfl year, and almoft one of the firft acts of his reign, found himfelf under the neceffity of confenting to an aft of Parliament*, expreffive of the various evils fo which the people had been expofed, declaring the illegality of all fuch inventions, particularly fpe- cifying the invention of benevolences, and enact- ing, that in future no Juch charges as have be- fore been taken, mall be taken again, but that tkey fhall be damned and adnulled for ever. In thecourfe of thefe proceedings, no reference feems to have been made to what paffed in former reigns. The fyftem appears to have been taken up as if nothing of the fort had ever occurred before; and the fubjedl: of complaint to which a remedy was to have been applied, feems on this occafion to have been wholly confined to the circumftance of exaction ; from whence an in- ference may certainly be drawn that, at that time t a mere voluntary donation was not confidered as a grievance ; and this inference is perhaps fome- what ftrengthened by the next ftatute which, ac- cording to its order of fucceffion, 1 have to cite -\-. This ftatute fets forth, that divers of his Majefly's fubjecls had feverally granted divers fums of money of their free- wills and benevolence $ it then recites, that feveral of thefe fums rogative) I mould infer, that he me.ant tacitly to acknowledge, that had fuch circumftances exifted, the meafure would have been illegal. For when a man argues that any particular cafe is no violation of the law, becaufe it is unattended by feme particu- lar circumjlance, it feems naturally to induce a fuppofition, that the concurrence i fuch a circum- itance would be fufficient to conflitute the illegagility of the meafure; and thofe who read the tranfadtions relative to this fubjeft, during the reign of the unhappy Charles, will find a difpofition in the arguments which were employed in defence of thole who oppofed the lyftems of that period, fimilar to that which characterizes thole of the prefent. 7"he meafure of exaction, * Vide Trial of Oliver St. John, State Trials, Vol. II. however,, ( 77 ) however, was certainly carried to a much greater extent than has hitherto been attempted. We have not yet had imprifonments; we have not yet had the refractory part of the country com- pelled to go to the wars; but we have had that done which even Lord Bacon, when pleading for the crown, did not attempt to fupport we have had the crown moving the fubject to contributions; exerting that influence which is attached to its high fituation, in order to induce the fubject to part with that money, which cannot conftitu- tionally be appropriated to public purpofes, but by the direction of Parliament. Let us reflect, that from fmall beginnings, the mod important confequences oftentimes follow. Let us call to mind the trifling beginning, and the fatal end of the meafures of that period, to which we are now arrived. Let us in the prefent inftance, from, paft mifconduct, draw leflbns of wifdom. for future occafions; and by checking every effort towards an unconftitutional extenfion of prero- gative, prevent thofe misfortunes which no man can at this moment forefee, and which, when forefeen, no man may be able to prevent. Let us call to minds the notable faying of Lord Coke*, " That when any ancient law or cuflom of Par- ff liament is broken, and the crown poffeffed of 2 Inft. 528. a pro- ( 78 ) < c a precedent, how difficult a thing it is to " reftore the fubjecl agayi to his former freedom ' and fafety." But above all, it behoves the minifters of the crown to confider well the confe- quences, before they advife the adoption of illegal meafures, and thereby lay the feeds of a certain refiftance : they mould recollect, that the unfor- tunate Charles, by provoking a refiftance to ufurped powers, led the way to the final invaficn of his juft claims. The petition of right in the third of this prince, endeavoured to mark out the line of the king's duty, by ftating a variety of oppreffions which had been praclifed on the people by the crown^ and claiming an exemption from all fimilar hard- Ihips in future. Charles the Firft, in compli- ance with the requefls contained in this remon- ilrance, concurred in declaring all the grievances therein complained of, to be contrary to law, and in enacting that none fuch in future fhould be pra&ifeil. Had this ill-fated monarch re- folved to abide by the rule which he had himfelf confented to eftablim ; had he been contented to be guided by the fpirit of the acT:, inftead of feeking for the means of evafion from the narrow limits of literal expreffion; would he but have recollected that he was a limited, not an abfolute fovereign; that the kings of England hold their crown, in fome decree, at the wil 1 , and entirely for ( 79 ) for the advantage of the people, not by a divine right, originally and immediately proceeding from God, and not with a view to furnifh them with a power to be exerted for their fole pleafure, or for their p?rticular ambition; had he bat confi- dered that ihis limitation was created by his total dependance on Parliamenty^ry///^^, and that he could never exped to contend for any prerogative of obtaining money, except through that chan- nel, without at the fame time preparing himfelf for the moft ferious and dangerous confequences ; it is probable, that if fuch had been the tendency of his fentiments, the more melancholy events of his reign would not have occurred. When he had confented, " that thereafter no man fhould " be compelled to make or yield any gift, loan, " or benevolence, without common confent, by " adl of parliament," the triumph of the legif- lature over every attempt at the exercife of fuch prerogatives was intended to have been decifive. And in faft, fo it ought to have been held to be : for the fcope of the petition of right, was to declare every means of extra-parliamentary fupply which had been adopted in preceding times, to be illegal; and among thofe means muft be ranked the fubfcriptions, for flandering which Mr. Oliver St. John was fo feverely punimed in the reign of James the Firft ; fubfcriptions which, according to Sir Francis Bacon when pleading in behalf behalf of the crown for that profecution*, were of the leaft exceptionable nature, being purely vo- luntary, exmero motu dinantis, no not fo much as recommended in the firft inftance by the crown. Bat the prejudices in which Charles had been educated, and the opinions which he had im- bibed as to the fanctity of regal authority, could never admit fuch a liberality of conftrudtion : on the contrary, they urged him forward, until at lafl he not only aimed at the extenfion of prerogative, by evading the fpirit, but adlually attempted to eftablifh an abjolute authority, by violating the letter of the law. cc Fortunately however, when " the country emerged from the anarchy and " mifery of the fcene which followed, the ex- ' travagance of joy did not extinguifh a due *' remembrance of the confKtution. One of the " firft: ads after the Reftoration, was a grant of " tonnage and poundage, with words which " renewed a part of the former declarations " againft taking by prerogative; for it anxioufly " recited, that no rates can be impofed on mer- " chandize imported or exported by fubjefts or " aliens, but by common con fent in Parliament^" The commons however, not fatisfied with the * Vide Sir F. Bacon's Speech, State Trials, Vol. II. i Vide Mr. Hargrave's Iiuroduftory Note to the cafe of Impofi- tions, or Bates 's Cafe, in Vol. XI, of the State Trials, extent extent of this provision, which might be capable of a conflruction fimilar to that which had been put upon former flatutes of the fame defcription, and which might be here- after pleaded as condemning only all compulfory efforts of prerogative taxation, feems to have been refolved to exclude all future poffibility ofraifing money, without their previous confent, by an aft for that particular purpofe; which, by general words, might include every invention by which fuch an object as the acquifition of money, uncontrouled by Parliament, might be effected. Accordingly, in the next year, being the 130. a.* a ftatute is paffed, containing words declaratory that fubfcriptions or " benevolences to the crown, " though voluntary, cannot regularly be made " out of Parliament." " This ftatute authorizes " the king to iffue commiffions under the great " feal, for receiving voluntary fubjcriptions for " the fupply of his occafions 5 but limits corn - " moners to aoo /. and peers to 4007. a piece " and allb the time for fubfcribing ; and con- f< eludes with declaring, that no commijfions or " aids of this nature can be iffued out or levied but " by authority of Parliament l -j-." I deem myfelf * App. (S.) f Vide Mr. Hargrave's Introdu^ory Note to the Trial of Mr. Oliver St. John. M fingu-, ( 82 ) fingularly happy in having been able to convey my own impreffions on this flatute in the words of Mr. Hargrave j becaufe the fanction of fuch an authority will remove from my conduct the imputation of arrogance in contending with the preftnt attorney and folicitor general, and be- caufe his eminent character with the public, as an upright and deeply-learned lawyer, will add the weight of his reputation to thofe opinions, which, as coming from one not only undiftin- guifhed but unknown, would perhaps be thrown afide unread, at all events unregarded. With refpect to this conftruclion of this ftatute, I {hall have occafion to add but a very few words. The object, as has been already obferved, was to enable the crown to iffue commiffions under the great feal, for the purpofe of receiving certain aids ariling from voluntary fubfcriptions, and at tfye fame time to deftroy the poffibility of levying fuch aids in future. In order to oppofe the ap- plication of this flatute to the prefent queftion, it has been afTerted, that its object was only to prevent the receipt of fuch aids, through the means of a commiffion under the great feal. Unfortunately for this afTertion, in the prohibition of the future practice of thefe means of fupply, we find that fame disjunctive or intervening, which was adverted to by Lord Coke in ex- plaining the 34th of Edward I. the words of the the i ^th Charles II. being, " that no com- " miffions or aides of this nature, can be if- " fued out or levied, but by authority of Par- " liament;" that is, that no fuch commiffions can be iflued, or aides levied but by fuch au- thority : that is, according to Lord Coke's reafon- ing upon, and, indeed, according to the natural inference to be drawn from this disjunctive, even though no fuch commiffions mould be iffued, flill abfolutely no fuch aids, viz. voluntary fub- fcriptions, can be levied. By means of this dis- junctive, the commiffions and the aids are made t<;o diftinct fubjects, entirely independent of each other; and the provilions of the ftatute for pre- venting either from being drawn into examples for the future, muft be applied to each, without any reference of one to the other. Had the con- junctive and been ufed inftead of the disjunctive or, then the conftruction might poffibly have been applied in favour of the prefent meafures, at lead the application might have been fup- ported by fome mew of reafon ; but in con- fequence of this disjunctive expreffion, the ob- ject of which is to diflinguim and feparate, fuch an explanation of the meaning of the act is rendered impoffible. Upon this ftatute the learned annotator in the (late trials obferves, that it was " the aim of the act to condemn. ?' benevolences by the folicitation of commif- M 3 * ( 84 ) <{ lions from the crown, and to fupply the " defeat of the ftarute of Richard III. and the " petition of right, both of which point at com- " puifive benevolences. The inducement to " fuch a declaration of the law probably was " an idea, that a formal felicitation from the " crown, muft neceflarily operate on the minds " of thofe to whom it was addrefled, with an tf influence almofl equal to compulfion. Thus " at length it feems to be fettled by the legifla- " ture, not only that compulfive benevolences " are unlawful, but that all commiffions from the " crown to folicit and receive voluntary gifts, are " alfo unconftitutional*." To conclude. I am fully fenfible that in the doctrine which I have attempted to eftablim, I have given a more extenfive conftruction to the ilatute i jth of Charles II. than has been given to it by Mr. Hargrave. I do not pretend to fay that I am right; but even if I am, he is not wrong. The only difference between us I be- lieve to be, that I have been more bold, he more cautious. Upon fuch fubje&s I may be per- mitted to hazard opinions, becaufe I can have only reafon and truth for my fupporters ; in him caution is an abfolute duty, as he has alfo a re- p utation which might miflead the world ; and an * The introduftory Note to St. John's Cafe. afiertton afTertion from him might pafs without examina- tion, and be conlidered as law without enquiry. At all events, however, upon the ftrength of thofe arguments which I have myfelf advanced, to- gether with the fanction of his authority, I may be permitted to coniider the point on which I ftarted as decided, namely, that the meafures which have been purfued by the prefent admi- niflration for the purpofe of railing fubfcriptions fet on foot in confequence of an original motion from the crown, are unconstitutional, illegal, and unsupported by any precedent whatever ; that confequently they are " grievances found out " and proved*;" which, upon the authority of Sir E. Coke, according to what he calls an ex- cellent precedent, " mould be put down and (t overthrown by authority of Parliament." * 2 Inft. (530.) I am, Gentlemen, &c. Lincoln's Inn. APPENDIX. APPENDIX. (A.) CIRCULAR. WHITEHALL, Maj ~ % 1782, SIR* AJLIS Majefty has commanded me to exprefs his firm reliance upon the fpirit and loyalty of his People, and his Royal confidence, that during this feafon of difficulty, their utmoft en- deavours will not be wanting to give unqueftion- able proofs of their attachment and emulation for his fervice. And forefeeing, that by wife, flrenuous, and timely preparations, he may not only difappoint or defeat any hoftile attempts, but, by appearing ftrong and united at home, he may be enabled to make the more power- ful efforts for maintaining his honour and the public interefts abroad, and thereby lay the fureft foundation for a fafe, an honourable, and a lafting peace ; apd as the populoufnefs of the principal towns anc} cities of Great Britain natu- rally offer the greateft facility ', as well for form- i{jg into carps, as for learning the military ex- ercife, ercife, 'without lofs of time, interruption of labour t or any confiderable fatigue, his Majefty has com- manded me to tranfmit to you the inclofed pro* pofition, which has been fubmitted to his Ma- jefty, as at leaft a temporary plan for augment- ing the cfomeftic force of the nation ; which being adopted or improved, according to the cir- cumftance and fituation of the town of which you are the chief magiftrate, may tend to the immediate formation of a great and refpectable addition to the national force at home, on the moft natural and conftitutional principles. For this purpofe I have his Majefty 's com- mands, to fignify to you his defire and recom- mendation, that you fhould take the fame into immediate confederation ; and, after having confi- dered, report to me whatever obfervations may occur to you, for carrying into execution a plan, the purpofe of which is, to give fecurity to your own perfons and property, and to the general defence of the kingdom. I am, &c. SHELBURNE. To the Mayor or Chkf Magiftrate, &c. CIRCULAR. ( 88 ) (B.) CIRCULAR. WHITEHALL, J%. 7, ,782. MY LORD, OR SIR, I HAVE the honour, in obedience to theKing's commands, to tranfmit to you a copy of a cir- cular letter, which is to be addrefied to the cities and principal towns in Great Britain. I am to requeft, that your Lordfliip will take the con- tents into your ferious confidcration, and report to me your obferiiations thereupon, and particu- larly whatever may occur to you of importance with refpecl: to the cities or towns within your county, that I may immediately Jubmit them to his Majejly. I am, 6cc. SHELBURNE. .'aiana arfj b) kcu- v'ji3oi WHITEHALL, May 7, 1782, MY LORD, I HAVE the King's command toenclofeto your Lordfhip a copy of a circular letter, which I have written by his Majefty's command to the principal cities and towns of Great Britain, in- closing a propofal which has been fubmitted to bit his Majefty, as at leaft a temporary plan for aug- menting the domeftic force of the nation. And as his Majefty is difpofed to indulge hopes of a general exertion of all his faithful fubjedts, he is led to encourage with particular confidence an expedtation, that his faithful citizens of London will fet a prevailing example of activity and zeal on the prefent occafion ; keeping up that character by which they have been fo eminently diftin- guimed at many former periods, when their at- tention to private convenience has given way to their regard for public expediency, and they have from their own body drawn out the moft formi- dable forces, to guard their fovereign and protect their country. As the means and refources of the capital are greater than the other cities and towns of the kingdom to make eflential efforts, his Majefty entertains no doubt of the readinefs of his faith^ ful citizens, to {hew a degree of exertion propor- tioned to the fuperiority of their interefls in the fafety and welfare of the ftate. I muft entreat your Lordfhip to make the proper communication of this propofal; and I mail embrace with great fatisfadtion the earlieft opportunity you will afford me, of conferring with you with reipecT: to the more conftant and regular duty of thofe bodies of men whom you N now ( 9 ) now only occafionally exercife, as well as to any additional exertion which the eity of London may think proper to adopt. I am, 6cc. SHELBURNE* &ight Hon. the Lord Mayor, of the Clfy of Ldiidori. (D.) COPY OF A CIRCULAR LETTER TO THE LIEUTENANTS OF COUNTIES. WHITEHALL, March 14, 1794. MY LORD, OR SIR, FINDING, from an official inaccuracy, that copies of the plans which have been prepared with a view to the augmenting the internal force of this kingdom, have not been communicated to you, I have the honour of incloling copies thereof herewith, I am, &c. HENRY DUNJ>AS. HEADS (E.) HEADS OF A PLAN RAISING CORPS IN THE SEVERAL PRINCIPAL TOWNS IN GREAT BRITAIN, 1782. r. The principal towns in Great Britain to fur- nifh. one or more battalions each, or a certain number of companies each, in proportion to their fize and number of inhabitants. 2,. The officers to be appointed from among the gentlemen of the neighbourhood, or the in- habitants of the faid towns, either by com- miflion from his Majefty, or from the lord lieutenant of the county, upon the recom- mendation of the chief magiftrate of the town in which the corps are raifed. 3. They are to be poflefled of fome certain eftate in land or money, in proportion to their rank. 4. An adjutant or town mayor to be appointed by his Majefty. 3. A proper number of ferjeants and corporals from the army, to be appointed for the corps in each town in proportion to their numbers. . The faid ferjeants and corporals, as well as the adjutant or town mayor, to be in the Government's pay. 1$Z 7, The ( 9* ) 7 The men to exercife frequently, either in bat- talion, or by companies, on Sundays and on all holidays, and alfo after their work is over in the evening. 8. Arms, accoutrements and ammunition, to be furniftied at the expence of Government, if required. p. Proper magazines or ftorehoufes to be chofen or erected in each town, for keeping the faid arms. 10. The arms and accoutrements to be delivered out at times of exercife only, and to be re- turned into the (lores as foon as the exercife is finimed. 11. The adjutant or town mayor to be always prefent at exercife, and to fee that the men afterwards march regularly and lodge their arms in the florehoufes. 12. Proper penalties to be inflicted on fuch as abfent themfelves from exercife, as alfo for dif- obedience of orders, infolence to their officers, or other diforderly behaviour. 13. The above corps not to be obliged on any account, or by any authority whatever, to move from their refpective towns, except in time of actual invafion or rebellion. 14. His Majefty (hall then have power to order the faid corps to march to any part of Great Britain, as his fervice may require. 15. They ( 93 ) 15. They are on fuch occafions to act either fe- parately, or in conjunction with his Majefty's regular forces, and be under the command of fuch general officers as his Majefty (hall think proper to appoint. 1 6. Both officers and men to receive full pay as his Majefty's other regiments of foot from the day of their march, and as long as they mall continue on fervice out of their towns'*. 17. They are to be fubjecl: to military difcipline, in the fame manner as his Majefty's regular forces, during the faid time of their being fo called out, and receiving government's pay. 1 8. All officers who mould be difabled in actual fervice, to be entitled to half pay ; and all non- commiffioned officers and private men difabled, to receive the benefit of Chelfea hofpital. 19. The widows of officers killed in the fervice to have a penfion for life. * Time of fervice to be named. HEADS ( 94 ) (FO f|:||^p^ HEADS OF THE PLAN OF 1794, COPY. WHITEHALL, March 14, 1794^ IN order to provide more completely for the fecurity of the country againft any attempts which may be made on the part of the enemy, it may be expedient to adopt fome or all of the following meafures. 1. To augment the militia by volunteer com- panies, as was pradUfed in the laft war; or by an additional number of volunteers, to be added as privates to each company. 2. To form volunteer companies in particular towns, efpecially in thofe fituated on or near the fea coaft, for the purpofe of the local de- fence of the particular places where they may be raifed, according to the accompanying plan, or fuch other as may, on application for that pupofe, be approved of as beft adapted to the circumilances of any particular town. 3. To raife volunteer troops of fencible cavalry, confifting of not lefs than fifty, nor more than eighty per tfoop, who will be to ferve only during the war, and within the kingdom. ( 95 ) The officers will have temporary rank only, and will not be entitled to half pay. The arms, accoutrements, and cloathing, will be furnifhed by Government, but the levy money for the men to be furnimed by the perfons who undertake to raife fuch troops ; and the horfes to be found by them, but to be paid for, at a reafonable price by Government. A perfon raifing two troops to have the tempo- rary rank of major -, four troops that of lieute- nant colonel j and fix troops that of colonel. 4. To form other bodies of cavalry within particular counties or districts, to confift of the gentlemen and yeomanry, or fuch per- fons as they (hall bring forward, according to the plans to be approved of by the king, or by the lords lieutenants under the au- thority from his Majefty ; and the officers to receive temporary commiffions from his Majefty; and the mufter rolls alfo to be approved by his Majefty, .or by the lords lieutenants, at periods to be fixed. No levy money to be given ; and the horfes to be furniihed by the gentry or yeomanry who compofe the corps ; but the arms and accoutrements to be fupplied at the expence of -the public. Such corps to be exercifed only at fuch times as (hall be fixed by war- rant from his Majefty, or by the approbation of ( 96 ) of the lords lieutenants ; to be liable to be em- bodied or called out of their counties by fpe- cial directions from his Majefty, in cafe of actual appearance of invafion ; and to be liable to be embodied or called out of their counties by fpecial directions from his Majefty, in cafe of actual appearance of invafion ; and to be liable to be called upon, by order from his Majefty, or by the lord lieutenant or merifFof the county, to act within the county, or in the adjacent counties, for the fuppreffion of riots and tumults. In either cafe, while actually in fervice, they (hall receive pay as cavalry, and be liable to the provifions of the mutiny bill. 5. To enroll and appoint places of rendezvous for a fufficient number of perfons in different parimes and diftricls, particularly in places near the fea coaft, to ferves as pioneers, or to affift the regular force in any manner that may be neceffary, on the flborteft notice, in cafes of emergency. GENERAL ( 97 ) (G.) GENERAL SUBSCRIPTION. COPY. WHITEHALL, March 14, 1794* IT is naturally to be fuppofed, that gentlemen of weight or property, in different parts of the kingdom, will feparately ftand forward, in order to carry into execution the feveral parts of the plan for the fecurity of the country. But it feems alfo defirable a general fubfcription mould be opened, to be applied under the direction of a committee, for the purpofe of affifting in carrying into execution all or any of the meafures therein fuggefled, as circumftances (hall appear to require. 25 Ed* L Statute i* Chapters 5, 6, 7. CHAP. 5. t Ta/ks, and Prifes, granted to the Klng^ jhall not be taken for a Cuftom* " AND for fo much as divers people of our realm are in fear, that the aids and talks which they have given to us before-time towards O " our ( 98 ) " our wars and other bufinefs, of their owrt " grant and good- will, (howfoever they were " made) might turn to a bondage to them " and their heirs, becaufe they might be at " another time found in the rolls, and likewife " for the prifes taken throughout the realm by " our minifters in our name ; We have granted " for us and our heirs, that we fliall not draw " fuch aids, talks, nor prifes into a cuftom, for ' any thing that hath been done heretofore, be ' it by roll or any other precedent that may be ** founden." CHAP. 6. The King or his Heirs will take no Aids, or Prtfes, but by the Confent of the Realm, and for the common Profit thereof. " Moreover we have granted for us and out " heirs, as well to archbimops, biftiops, abbots, c priors, and other folk of holy church, as alfo " to earls, barons, and to all the communalty of Cf the land, that for no bufinefs from henceforth '* we fliall take fuch manner of aids, taiks, nor " prifes, but by the common aflent of the realm, " and for the common profit thereof, faving the " ancient aids and prifes due^andaccuftomed." CHAP. ^ ( 99 ) CHAP. 7. A Rekafe of Toll taken by the King for Wool*, and a Grant that he will not take the like without common conjent and good will. " And for fo much as the more part of the * ( communalty of the realm find themfelves fore " grieved with the maletolt of wools, that is to " wit, a toll of forty millings for every fack " of wooll, and have made petition to us to " releafe the fame;" * We at their requefts have * clearly releafed it, and have granted, that we ' mall not take that or any other without their ' common affent and good will, faving to ' us and our heirs the cuftom ofwoolls, fkins ' and leather, granted before the communalty * aforefaid.' Statutum de tallagio non concedendo. Fadlum anno 34 Ed. i. flat. 4. CHAPTER i. The King or bis Heirs flail have no Tattage or Aid without conjent of Parliament. NO tallage or aid mall be taken or levied (pona-t levetur) by us or our heirs in our realm* the good will and aflent of archbiihops,, Q & bifhors, ecrls, barons, knights, burgefles, and other freemen of the land. CHAPTER 3. Nothing mall be taken of facks of wool by colour of maletolt. Nothing from henceforth fhall be taken of facks of wool by colour or occafion of maletolt. 14 Ed. III. flat. i. c. 21. ITEM, though the commons of the realm did pray the King, that he would, by affent of the Parliament, grant and eftablifh, that never fhould be taken more cuftome of a facke of wolle then halfe a mark, nor of leade nor tinne, lether nor wolfelles but the old cuftome -, neverthelefs the King prayeth the prelates carles barons and all the commonaltie for the great bufinefs which he hath now in hand, as they well know, that they would grant to him fome aide upon the wolles lether wolfelles and other merchandizes, to, endure for a fmall feafon: whereupon deliberation had, the faid prelates carles barons and commons of his real me, hath granted to him forty (hil- lings to be takfm of every facke of wooll, and, forty (hillings of every three hundred wolfelles, arid. and forty millings of every laft of lether and other merchandifes that pafs beyond the fea after the rate. And to begin at the feaft of Eafter in the fourteenth yeere of his raigne, and to endure till the feaft of Pentecoft then next following ; and from that feaft till the feaft of Pentecoft then. next following into a yerc. And for this grant the King, by the affent of the prelates carles barons and all other aflemtifed in Parliament, hath granted, that from the feaft of Pentecoft which cometh into one yeere, he nor his heires {hall not demand, aflefle, nor take, norfuffer to be taken, more cuftome of a facke of woolle of any Englifhman, but halfe a marke onely. And upon the wolfelles and lether the olde cuftome. And the facke ought to conteine twenty-fix ftones, and every ftone fourteen Pounds. ROT. PARL, 17 ED. HI. No. 28. ITEM, q la maletoute des leynes fe teigne a demy mark come en temps de fes progenitours ad efte ufez, &/> eftatut puis en vre temps grantee. Et coment q les marchandz eient grantez par eux, fanz aflent des communes, un fubiide XL S. de chefcun fac de leyne outre la droiturele maletoute tfe demy mark, voillez s'il vous pleft aver regard, 3