and they must have recourfe to the history of the times, and to Rushworth's Collections to enable them to underftand the ground of the meffage that appeared to have been fent to the Exchequer on that day. King Charles the First, as was well known, had levied the duties of tonnage and poundage without the confent or grant of the Commons. Whilft the Houfe was fitting on the grand Committee on tonnage and poundage, petitions were presented from fundry merchants, complaining that their goods were detained by the customers for non-payment of duties, and by injunctions from the Court of Exchequer. Mr. Noy moved that a meffage be fent to the Exchequer, that whereas certain goods of the merchants had been stayed by an injunction from that Court by a falfe affidavit, and that upon examination the customers that made the affidavit had confeffed that the goods were only stayed for duties contained in the book of rates, and therefore the Court would make void the orders and affidavits in this bufinefs. Mr. Selden feconded the motion of fending a meffage to the Exchequer, and declared a precedent of a meffage sent into the Chancery for stay of proceedings in a caufe, and it was obeyed. Whatever aufwer the Judges returned, it could not prejudice, the law fpoke by records, and if those records remained, it would to pofterity explain the law. The Court fent two anfwers, which were not fatisfactory to the House, and the Houfe proceeded against the cuf

tomers.

Since

The Bedford Level precedent seemed to him, when explained, to be appofite to bear upon the ground of the prefent queftion. The bill for fettling the draining of Bedford Level was prefented to the House in March 1663. the time of the firft incorporation of the Earl of Bedford and his adventurers, and participants in the Great Level, by act of Parliament of the 7th of Charles the First, great fums of money had been laid out in the drainage, and Commiffioners appointed by an act during the republic in 1749, had adjudged that the fame was drained: but great difputes and controverfies having arifen, and the metes and bounds of the land within the faid level, as to the counties and parishes being very difficult to ascertain, and hard to be distinguished, it was the object of this bill to form a better Government and judicature for a matter of fuch public concernment, and as the preamble recited many ways advantageous to this kingdom. The bill was retarded by many delays and contentions,

tentions, and hearing of counfel; and in the progress of it, ejectinents were brought for part of the lands, in order to obtain judgement before the bill could pafs. On the 20th of June the order was made, that the provifions of the bill, which were calculated to form a better government for the great public concern, might not in any part be defeated. When the bill paffed, there was an end put to all fuch fuits, for a new judicature was eftablished to hear and determine all differences in a fummary way.

The next Sir Grey ftated was, Deane Foreft, 1667. The matter was then under confideration; a bill paffed the year following for inclofing 10,000 acres in the faid foreft, and for the prefervation and increase of timber within the faid foreft.

The Precedent of the Orders to the Attorney General to profecute. This was, in his humble opinion, a strong and powerful precedent. In the first year of King William, the power of the Attorney General, to file informations ex officio, was called into question in the King's Bench, by Sir Francis Winnington; but no encouragement was given to his argument by the court in which Holt prefided. By the 4th and 5th of King William, the Clerk of the Crown was to exhi bit no informations, except by order of the court; but by a clause at the end of the act it was declared, that act should not extend to any other informations, than fuch as were, or fhould be, exhibited by the Mafter of the Crown Office. By this exception, the power of the Attorney General to file informations ex officio for crimes and misdemeanors, was acknowledged by Parliamentary recognition. The difcretion was vefted in him of filing informations in proper cafes. He was refponfible for the exercife of that difcretion. Upon cafes and matters, and evidence, examined in that Houfe, they directed his difcretion, and took away his refponfibility, because they deemed it for the public fervice fo to do. But the cafe now in queftion was the most important for them to examine accurately, and to be fure they were right, and upon clear ground. To understand this matter, and the ground of it, they must go back to the original proceedings in the fecret Committee in 1773, and laid before this Houfe in their 8th report, on the 11th of June, 1773-Sir Grey ftated the precedents of January 10, 1680, which was after the rejection of the Exclufion Bill by the Houfe of Lords. Lord Cavendish, Mr. Montagu, Lord Ruffell, Serjeant Maynard, and Sir William Jones, and the band of patriots that VOL. XIII. followed

R

followed them, moved, 24tlı of December, 1680, a bill for exempting His Majefty's Proteftant fubjects, diffenting from the Church of England, from the penalties of certain laws, or in other words to repeal the act of the 35th of Elizabeth. This bill was paffed by the Houfe of Commons, and, with fome alterations, agreed to by the Houfe of Lords. On the day on which that refolution was paffed, the King came fuddenly to prorogue the Parliament. The bill for the relief of the Proteftant Diffenters was, in the words of the publisher of Architell Grey's debates, by a court juggle, or as fomé fay, by the King's exprefs command, not prefented by the Clerk for the Royal affent; fo the non-conformifts had nothing but the bare opinion of the Commons_to_fhelter, them from the indignation of the Crown. The Parliament fat again at Oxford in May 1680. On the first day they moved an enquiry into the mifcarriage of the fecret and treacherous art by which this bill was loft; but the Parlia ment was fuddenly diffolved, and in the famous declaration which was publifhed foon after the diffolution of this last Parliament of his reign, this vote was arraigned, and the King's Minifters, who durft not advise him to give his conftitutional negative to the bill, had the confidence to appeal to the people against the Houfe of Commons upon the matter of the refolution. The words were nearly the fame as the Lords had ufed in the prefent refolution, that they had, without any regard to laws eftablifhed, affumed to them a power of fufpending acts of Parliament. Sir William Jones, in his anfwer to the declaration, defended the vote in the following words: "The House of Commons are in the next place accufed of a very high crime, the affuming to themselves the power of fufpending acts of Parliament, becaufe they declared that it was their opinion that the profecution of Proteftant Diffenters at this time, was dangerous to the peace of the kingdom." The Minifters thought it would be very popular to accufe the Commons of this attempt; but how they could poffibly mifinterpret a vote at that rate, how they could fay the Commons pretended to a power of fufpending laws, when they only declare their opinion of the inconvenience, required explanation in a fecond declaration...

In the Eighth Report from the Committee of Secrecy laid before the Houfe on the 11th of June, 1773, it was ftated, that the then prefent diftrefs of the Company in England for want of cafh was principally owing to the great quantity of bills drawn by the Company's Prefidencies in India, and as

cepted

cepted in England between the firft of March 1771, and the firft of March 1772. That the Directors, fenfible of the difficulties to which the Company's affairs in England must be exposed for want of cafh if the bills drawn upon them exceeded a certain amount, had by repeated orders limited their Presidencies to certain fums. It appeared by the report, that permiffion by the letters from the Directors in 1768 amounted to 212,000l. from Bengal, and by the letters. in 1769 to 228,000l. but the bills drawn in the season 1770 amounted to 1,063,000l. excefs above the order 834,000l. The report then ftated the excess of bills above the orders from Fort St. George, Bombay, Bencoolen, and China. The House took this report into immediate confideration; and the bill being then in the Houfe for granting the fum of 1,400,000l. for the relief of the Eaft-India Company, the claufe which was the bafis of the limitation of the amount to which the Company might bind itfelf by the acceptance of bills from their feveral Prefidencies, was inserted in that bill. The estimate of 300,000l. per annum was formed from the report; and when the claufe was propofed and opened by the very able and learned member who had the conduct of the bill, he stated that the difcretionary power was vested in the Lords of the Treafury, merely to obviate and to prevent the neceffity of the Company's refufing the acceptance of any of the bills drawn from the different Prefidencies, if in any year there fhould be an excefs of the fum of 300,000l. limited fpecifically by the claufe. Upon this difcretionary power of the Lords of the Treafury fo vefted in them by the act of 1773, and afterwards, with fome variation, reenacted in 1781, the Houfe came to the monitory refolution then under confideration. Let us then, faid Sir Grey, re view the fituation and circumftances in which the House ftood, at the time of paffing this refolution, which was deemed fo high a crime. The firft India bill had just been rejected, no matter by what means. The House was upon the point of an adjournment for a fortnight. Accounts of the immenfe amount of the bills drawn on the Company, which remained unaccepted, were before the Houfe and in their contemplation. There was an alarming nota bene at the foot of that account, that upwards of two millions more might be expected to be drawn for within a certain period. There was no Minifter of finance in the Houfe, and the bill holders were known to be very active and to have great influence. The Houfe thought it their duty to pass the refolution, as a warning to the new Treafury, that they might

R 2

Mr. McDonald.

not be surprised into a confent to acceptances, which might throw the money matters of the Kingdom into great confufion and perplexity. The payment of the Cuftoms, the debt of which created the deficiency in the finking fund, might be conftrued to be poftponed to a more diftant day by such a confent, and all plans for the paying off or providing for the unfunded debt, might be traverfed and obftructed by this House being obliged to lay taxes on the land, the trade and the manufactures of the kingdom, for enabling the Company to pay those bills, before any act was paffed for the better government and management of the affairs of India, and for the protection of thirty millions of people. With respect to the words of the refolution, and the refolution and the stress which it seems was laid on the close of it, "or until this House fhall otherwife direct," he confidered it was a mere philological enquiry, and a criticism on the import and fignification, which if they were not beat from their obvious and natural meaning into fomewhat like a cavil, meant no more than until that House fhould take the matter into their farther confideration, or until farther order taken, which were the words at the clofe of fome of the precedents. Upon the whole, he hoped and trufted, they ftood juftified in paffing the vote before them, upon the cleareft ground of usage, precedent, principle, and duty; and that this monitory refolution, instead of being cenfured and held up to public refentinent, was a meritorious act, and deferved the thanks of their conflituents.

Mr. McDonald faid that that House could only maintain its true dignity and importance by taking care that their refolutions were always founded on legal principles, and that their tendency was ftrictly conftitutional. They fhould remember that they had frequently been doomed to repentance and fhame for hafty and inconfiderate measures. There had been cases where the judges had come to their bar, and had convinced them that their proceedings were not founded in law, and that they were on the contrary directly hostile to it. In the prefent cafe he thought them in the wrong. The refolution, if it meant any thing effectual, meant to fufpend the exercise of a difcretionary power; for it declared that they fhould not exercise it until they were fo directed by that Houfe. It went farther in his mind than any one of the precedents contained in the report from the journals; and the particular cafes pointed out by the noble Lord and honourable Baronet were not by any means in point. They muft always examine the context and hiftory of every cafe which