"That the Commiffioners of the Trea"fury be defired to move his Mafefty, to "give order for ftay of proceedings, on "the Commiffion iffued out of the Ex"chequer, touching the Forest of Deane." The law under which the Court of Exchequer holds its power, is no lefs facred then that which vefts a difcretionary power in the Commiffioners of the Treafury, relative to the acceptance of bilis drawn on the Eaft-India Company and yet no cenfure was to be found of the above order of the House of Commons; the Lords did not think it an attempt to fufpend the execution of law, becaufe the Houfe was at the time engaged in confidering of meatures relative to lands in that forett. The next precedent he touched upon, was from the Commons Joumal, vol. IX. page 702. Veneris 7 Die Januarii 1680. Refolved, Nemime Contradicente. "That whofoever shall hereafter lend, caufe to be lent, by way of advance, "money upon the branches of the King's "revenue, arifing by customs, excife, or "hearth-money, thall be judged to hinder "the fitting of Parliaments, and fhall be "refponfible for the fame in Parliament." Refolved Nem. Con. "That whosoever fhall accept, or buy "any tally of anticipation upon any part of the King's revenue; or whoever, "hall pay fuch tally hereafter to be "ftruck, thall be adjudged to hinder the "fittings of Parliaments, and fhall be re"fponfible therefore in Parliament." It was well known that the Crown, by its prerogative, had always been in the habit of raising money, by borrowing upon the different branches of the revenue, fettled by Parliament upon his Majefty; and yet here was an interference, and a check laid upon the exercife of that prerogative, which the law of the land had vefted in the Crown. Were the Commons ever accufed of having acted unconftitutionally, or with an intention to fufpend the execution of law, when they paffed thefe two refolutions? No fuch accufation was to be found not even the traces of it. Another precedent, on which his Lordfhip laid most ftrefs, was the following from the Commons Journal, Vol. IX. Page. 704. Luna 10° die Januarii, 1680. Refolved, nemine contradicente, "That it is the opinion of this House, "that the profecuting Proteftant Diffen ters, upon the penal laws, is at this time "grievous to the fubject, a weakening of "the Proteftant intereft, encouragement to "Popery, and dangerous to the peace of "the kingdom." The circumftanee which produced this refolution were thefe: A bill had been brought into Parliament, in favor of Proteftant Diffenters, and paffed both Houfes; but on the day when the King went to the Houfe of Lords, to meet the Parliament, and diffolve it, this bill, which lay ready for the Royal affent, was not to be found; whether it had been carried off from the table by fome court trick; or whether it was that the Clerk of Parliament, by the private orders of the King, did not prefent it for the Royal affent, was never known; but the bill was lot, and both Houses were diffolved. This was after the exclufion bill was rejected. The next Parliament met at Oxford, and fet immediately about the Diffenter's bill; till finding they were going again to be diffolved, they paffed the above refolution, which was moved by Lord Cavendish, afterwards the first Duke of Devonshire; and feconded by Lord Ruffel. The Court felt the greatett fatisfaction, from this refolution; for as Minifters had been accused of maintaining, or at least countenancing a difpenfing power they were proud to find that the Whigs had paffed a resolution, which they said carried the difpenfing power as far as ever the Tories had : but Noy, who was afterwards Attorney-General, and Littleton, who was made Keeper of the Great Scal, both contended that the refolution was ftrictly legal. For the tendency of it was to point out to the Lords of the Treasury, that it would be improper to offer any reward for the conviction of Diffenters, which they might or might not do, as they pleafed. Here then was arefolution, directing or advifing the difcretion of the Treafury, and maintained to be strictly legal, by the greateft luminaries of the law, then in the kingdom.-He then touched upon the recall of Mr. Haftings moved in 1782, as a proof that any refolution that Houfe had yet voted could not be called a fufpenfion of the law of the land. The cafe was exactly the fame with regard to the refolution of the 24th December; yet the House of Lords had implied that they had fufpended the law. He contended that their refolution of the 24th Decem December was no fufpenfion of the law, it was merely expreffive of the opinion of the Houfe that it was the duty of the Lords of the Treafury not to accept the bills; but this was barely an opinion and by no means complufory; for the Commiffion ers might ftill accept the bills, and their acceptance would be valid, legal and bindng. His lordship added feveral other obfervations, and faid he meant to move fix refolutions in defence of the rights of that Houle; but his view was not to recriminate upon the other Houfe, or follow their example by propofing votes implying cenfure. He then read the following refolutions. 1. "That this Houfe hath not affumed to itfelf dny right to fufpend the execution of law" 2. "That it is conftitutional and agreeable to ufage, for the Iloufe of Commons to declare their fenfe and opinions, respecting the exercife of every difcretionary power, which whether by Act of Parliament or o thewife, is vefted in any body of men whatever for the public jervice." 3. "That it is a duty peculiarly incumbent upon this Houfe, entrusted, by the ConBitution with the fole and feparate Grant of the Public Money, to watch over, and by their timely admonitions and interference, to endeavour to prevent the rash and precipitate exercife of any power however veft ed, which may be attended with any danger to public Credit, or with heavy laffes to the Revenue and confequently burthens upon the People." 66 4. That the Refolution of the 24th of December laft, which declared the fenfe and opinion of this Houfe, That the Commiffoners of the Treafury ought not to give their confent to the acceptance of any Bills drawn or to be drawn from India, until it shall be made appear to this Houfe, that jufficient means can be provided for the payment of the fame, when they refpeftively fall due, by a regular application of the clear effects of the Company, after discharging in their regular course the Cuftoms and other fums due to the public, and the current demands upon the Company or untill this Houfe fhall otherwife direct,"—was confiitutional, founded in a fenfe of duty towards the People of this Kingdom, and dictated by a becoming anxiety for the prefervation of the Revenue and the fupport of public Credit.” 5-6 "That if this Houfe had, in the unfetiled fate of the Eafl-India Company, which was and ftill is under the confideration of Parliament, in order to form fome provifions for the relief of that Company and the fecurity of the Public, negleɛed to pass the faid Refolution of the 24th of December, to guard against a new charge, to a very confiderable amount being rafhly incurred before any means of anfwering it had been stated or provided; they would have been justly and highly refponfible to their Conflituents for the increase of thofe evils and difficulties which are already too feverely felt." 6. "That this Houfe will with the utmost moderation, but with the most decided firmnefs maintain inviolably the principles of the Conflitution, and will perfevere in the diligent and confcientious difcharge of the du ties which they owe to their Conflituents and to their pofterity, equally folicitous to preferve their own privileges, and to avoid any encroachments on thofe of either of the other branches of the Legislature." He concluded with moving the first, Sir Grey Cooper feconded the motion. He faid the manifeft purpofe of the Lords refolution then under confideration, was to imprefs the minds of the people that the Houfe had tranfgreffed the limits allotted to it by the conftitution. This would tend to degrade the character and diminish the authority of the Houfe, and juftify the difregard with which its refolutions had been, and continued to be treated, even by its own members. He took notice of the delay of the Lords in confidering this matter; that their anxiety for the conftitution had flumbered till it was roufed by certain refolutions of that Houfe, to the difpleasure and offence of his Majefty's Minifters. It was fingular he faid, that their lordships fhould have felected the refolution of the 24th of December for the object of their animadverfion. In the days of high prerogative, that House had been enjoined not to meddle with matters of state, and had been told by Kings and Chancellors that the affairs of the church were above the understanding of the Commons; but it was referved for thofe times to condemn them for the exercife of a difcretionary power, on which might depend the ftate of public credit, the amount of the fupplies of the year, and the ncceffity of laying heavier burthens on its conftituents. It was fome confolation, however, to them, that although the thunder was directed against them by powerful eloquence and formidable abilities, they were covered by the ægis of Minerva; that among other great and refpectable Peers, the Lord Chief Juftice of England, of as high and confummate talents, knowledge, wildom, and experience, as ever fat on the the Bench or in the Senate, and that an other great law Lord, whofe powers of eloquence and reafoning, whofe fhining abilities, and whofe particular attention to the law and usage of Parliament, that Houfe had often liftened to with pleasure and inftruction, oppofed, fpoke, and voted against this refolution. It must be admitted that the best rule for deciding the queftion in iffue was the law and ufage of Parliament, and the best evidences of that Jaw were frequent and authentic piece dents drawn from good times. There was a principle which pervaded and illuftrated all precedents; in all cafes upon which any proceeding had been inftituted and when the Houfe was in the progrefs of any enquiry, if there arofe a juft apprehenfion, that the purpofe of that enquiry might be defeated by the exercife of any difcretionary power vefted by law in any perfon, or in any body of men, and it fhould appear to the Houfe that the public fafety might incur any danger, or the religion, revenue, or commerce of the kingdom might fuffer by an improvident exercife of fuch power, the Houte had been in the immemorial ufe and practice to interpofe by refolutions declaratory of its opinion. That Houfe had never affumed a right to fufpend the execution of law, but it did claim a right to pafs monitory refolutions. If those who had the power did not take the advice, their acts were unquestionably good and valid in law, whatever might be the confequence to the public. He complimented Lord Beauchamp on the clearness and precifion with which he had explained the precedents contained in the report, and commented upon and further explained fome of them. He then adverted to the affairs of the Eaft India Company, and took a review of the fituation in which the Houfe ftood at the time of paffing the resolution, and concluded by faying, that he trufted the Houfe flood juttified in paffing the refolution upon the clearest ground of ufage, precedent, principle and duty, and that this refolution instead of being held up to the public refentment, was a meritorious act, and deferved the thanks of their conftituents. Mr. Macdonald obferved, that both the noble mover and the honourable Baronet had spent the force of their argument upon that which he conceived was not the queftion. They had declared, that the Houte of Commons had the power of giving their opinion and advice in all cafes of executive government. But the true queftion was, whether, when certain powers were placed by act of Parliament, or by the common law, in certain perfons, that Houfe had authority by a bare refolution to place that power in themfelves. If the refolution had declared what the Lord of the Treafury ought to do, it would have been confonant to precedent; but when it went farther, it vefted powers in that Houfe to which the Lords and the Crown had never aflented. The noble mover, he faid, had complained of the Lords for not turning over the page, this made it necef fary for him to affert, that the moft material cafes in the printed report were materially defective, so much so, that the laft line and a very important one, of one of the cafes, was omitted" that the concur rence of the Lords be defired." He then proceeded to examine the cafes in the report, eleven of which, he faid, were refolutions humbly to defire his Majefty to execute or not to execute the powers belonging to him. Unlets thefe cafes had gone the length of directing that his Majefty thould come to that Houfe for orders, they were not applicable. Some of the refolutions he would not hesitate to pronounce highly unconftitutional, and in one cafe in particular, the Houfe had reafon to blush at its own ignorance: the refolution he alluded to, was that respecting Bedford Level, where they directed that all proceedings at law should be stayed till the matter touching the fame, then depending in the Houfe, fhould be deters mined. The defendant pleaded, in confequence of this refolution, to the jurif diction of the Court. The Court told him that his plea was ill-timid; that he might ufe it hereafter but not then. Up on this the Houfe of Commons ordered the attendance of the Judges; and accordingly Chief Juftice Pemberton, and his colleagues attended; but the House appeared in the greatest confufion, when the Judge declared what the law of England was the Judges were directed to with draw, and the Houfe was afhamed to fir any more in the bufinefs. Having gone through the whole of the report, he obferved, that it was fingular in the worthy Baronet to quote the opinion delivered by an illuftrious Judge. Many gentlemen around him, he said, knew that the fentiments of that great man turned entirely, not upon the truth of the Lords refo lution, but upon the expediency. He concluded with calling the attention of the Houfe to the true queftion, as stated in the beginning of his fpeech. The wording of the refolution which had given of fence fence to the other Houfe, he afcribed to, inadvertency, and propofed that fomething thould be added to one of the refolutions now moved, explaining the intentions of the Houfe. If that were not done, he felt himself bound to vote against them. Mr. W. Grenville followed Mr. Macdonald and went over the fame ground. Mr. Erskine charged Mr. Macdonald with having mifreprefented Lord Mansfield's fpeech in the Houfe of Lords of the 4th inftant. In whatever elfe he might yield to that gentleman, he would not give up to him in memory. That noble Lord told the Houfe, that to vote an abfract propofition would be weak and ufelefs, and that to apply it as a cenfure on the Commons would be unwife. If it was to lead to no confequences it was an idle waste of words, and if confequences were to follow, they could be no other than difcord between the two houfes, a diffolution of Parliament, and the ruin of the empire. Thefe were the admonitions of that wife man, which the Lords had unwifely difregarded. He justified the refolution of the 24th of December in the ampleft manner, and proved the abfolute neceffity for the Houfe to come to fuch a refolution. The House of Commons, he faid, were not to be coufidered merely as a third branch of the legislature in cafes where taxation was concerned; the power - of the Commons, as the guardian of the public purse, was a power, as the great Earl of Chatham had truly faid, feparate, independant and diftinct from its authority as a third branch of the legiflature. He enlarged on thefe topics, and commented on the precedents reported by the Committee. He called upon Mr. Dundas to diftinguish between the refolution arraigned, and that moved by himfelf for the recall of Mr. Haftings that refolution declared it the duty of the Directors to recall him, although their power to continue or recall him was as well founded on statute as the power of the Treafury to withhold or grant the acceptance of bills. The Houfe, he faid, ought to be more jealous of its privileges at prefent, than at any former time, fince Minifters, a thing without parallel in the English hiftory, remain ed in defiance of its refolution, treated them with contempt, and appealed to the people against their reprefentatives. Mr. Dundas declared, he did not believe, that when the Houle voted the refolution which the Lords condemned, they had any intention to act unconftituti Vol. VI. March 1784. onally, but fuch was the import of it worded as it was, that had he been a Lord of the Treatury he fhould have confidered it binding. As to the refolution refpecting the recall of Mr. Haftings, the fact was he drew the refolution, but it was not inoved by him, he was not at the Houfe that day. The learned gentleman had compared that refolution with the refolution of the 24th of December, but he totally denied they were at all fimilar. He wished the Hufe in a spirit of conciliation would confent to explain their own meaning, that all the world might underftand it. In order to effect this, he propofed the following amendment to the fourth refolution, which he hoped the House would have no objection to. If this was unanimously voted, it would juftify the proceedings of the Houfe in the only way, that in his opinion, they could be properly juftified. The amendment was, after the word direct, to infert," being only to fignify the opinion of this House, touching the expediency under certain circumftances of the exercife of difcretionary powers given by act of Parliament, and not as binding the Lords of the Treasury to forbear the exercife of the faid powers, or to fubje&t the fame to the feparate direction of this Houje.” Mr. Fox antwered Mr. Dundas, and faid, if the Houfe of Lords had fearched for a fit advocate to ftand up for them in that House, to plead guilty, and to pray the Court to mitigate the fentence, a more fit one could not have been found than the learned gentleman. Mr. Fox replied to all the arguments of Mr. Dundas, and at length proceeded to animadvert on the Houfe of Lords, whofe conduct he severely reprobated. He defended the refolution of the 24th of December, by arguments at once new and forcible, and pointed out the great conftitutional diftinction between the two houfes, declaring that each had its diftinct and individual powers and functions totally separate from their characters as branches of the legiflature. Thus, that Houle was greater than the Houfe of Lords, becaufe of its powers of granting fupplies, a power peculiar to it. felf, and no part of its legislative office : in like manner, the Houfe of Lords was greater than that Houfe, because of its judicial powers, which were powers not lefs diftin from its legislative character, than their Committee of Supply, and the power of voting the public money was diftin&t from their legislative character. He faid, re confidered the late proceedings of the B b Lords, Lords, as a part of a deep-laid defign to deftroy that Houfe, and effect its ruin. He reafoned with his ufual acuteness, and at length concluded with giving his affent to the refolution, declaring, that he for one would not accept of the learned gentleman's amendinent, because it was a mere redundancy and a pleonafm, the fenfe of it being already comprehended in the fourth refolution. The Chancellor of the Exchequer rofe next, and complained of the invective and indignation that the honourable Gentleman had indulged himself in against the Houfe of Lords. He faid, fuch heat and afperity but ill accorded with profeffions of a defire for Union and cordiality. Mr. Pitt declared, he was glad to find the right and privileges of the Houle, for which no gentleman in it was a warmer or more zealous advocate than he was, were to ftand upon a more folid and fure footing than the loofe firing of refolutions that made up the report. He condemned thofe refolutions as unfairly reported, and pointed out in what they appeared to him to deferve that character. He entered into a full difcuffion of the conduct of the Houte of Lords and of the refolution of of the 24th of December. He faid, he was glad to have heard the conftruction that thofe who moved the refolution had that day put upon it, but fimply as the refolution food upon the Journals and unaided by any fuch explanation, he owned for one, the natural and obvious conftruction that offered itfelf to his comprehenfion was extremely different. He concluded with recommending the adoption of his learned friend's amendment, declaring, that if the Houfe fhould refufe and be against explaining their own intention, when they voted the refolution, he would move the previous queftion on the firft motion, but in doing fo, he defired not to be understood, as entertaining any doubt as to the truth and propriety of it, but merely with a defign to declare, that the true meaning of the Houfe in the vote of their refolution of the 24th of December, ought to be explained and afcertained. Lord North ably fupported the refolutions. He took occafion to mention the people without doors, and faid, he believed they were yet ignorant of the ftate of the queftion between the two houfes; but he was fure the time was not far off, when their conftituents would perceive who were their friends. He oppofed the previous question, as well as Mr. Dun das's amendment of the 4th refolution, and urged the House to make a stand and affert their rights as an independent branch of the legislature. Mr. Powys faid, he fhould confider the previous queftion if carried as an apology, and the amendment if adopted as a con ceffion, neither of which he thought it at all incumbent on that House to make to the other. At half past twelve the previons queftion was put, and the Houfe divided, Noes 180 Majority 29 Ayes 157 The three fift refolutions were put and carried, as was the fourth, the amend ment being negatived; the other refolutions were alfo put and carried. At one o'clock the Houfe adjourned to Wednefday. Wednesday, February 18. The order of the day being read, that the House now take into confideration the report of the Committee on the ORDNANCE ESTIMATES. Mr. Fox afked the Chancellor of the Exchequer if he had any thing to fay to the Houfe previous to their proceeding on the business before them. The Chancellor of the Exchequer faid, he would fulfil the promife he had made the Houfe of laying before them his Majefty's. fentiments with refpect to their refolutions, by faying, "that upon confidera"tion of all the circumfiances of affairs, "his Majefty had not thought proper to difmifs his Minifters, nor had they re"figned." 66 The Speaker defired to know if this was to be confidered as a formal meffage; if it was, he would defire the clerk to take down the words that they might be enter ed on the Journals. Mr. Pitt replied, that what he communicated was not to be confidered as a formal meffage, but merely as an intimation of his Majefty's pleafuie, relative to the fubject of the refolutions. Mr. Fox immediately rofe and said that it was the first inftance fince the revolution, at leaft fince the acceffion of the House of Brunfwick of a direct denial on the part of the Crown to comply with the withes of the House of Commons. It had given. him unspeakable concern that fuch an anfwer had been fent; but he rejoiced that it was communicated in fuch a manner that it could not be taken down and entered in their Journals. He declared he was far from |