Chapter VI: Part 6

But to this, my lords, it may be answered with equal reason, that every process of law is likewise, in some degree, defective; that the complications of circumstances are variable without end, and, therefore, cannot be comprised in any certain rule; and that we must have no established method of justice, if we cannot be content with such as may possibly be sometimes eluded.

And, my lords, it may be observed farther, that scarcely any practice can be conceived, however generally unreasonable and unjust, which may not be sometimes equitable and proper; and that if we are to lay aside all regard to futurity, and act merely with regard to the present exigence, it may be often proper to violate every part of our constitution. This house may sometimes have rejected bills beneficial to the nation; and if this reasoning be allowed, it might have been wise and just in the commons and the emperour to have suspended our authority by force, to have voted us useless on that occasion, and have passed the law without our concurrence.

With regard to the establishment of criminal prosecutions, as well as to our civil rights, we are, my lords, to consider what is, upon the whole, most for the advantage of the publick; we are not to admit practices which may be sometimes useful, but may be often pernicious, and which suppose men better or wiser than they are. We do not grant absolute power to a wise and moderate prince, because his successours may inherit his power without his virtues; we are not to trust or allow new methods of prosecution upon an occasion on which they may seem useful, because they may be employed to purposes very different from those for which they were introduced.

Thus, my lords, I have shown the impropriety of the bill now before us, upon the most favourable supposition that can possibly be made; a supposition of the guilt of the noble person against whom it is contrived. And surely, my lords, what cannot even in that case be approved, must, if we suppose him innocent, be detested.

That he is really innocent, my lords, that he is only blackened by calumny, and pursued by resentment, cannot be more strongly proved than by the necessity to which his enemies are reduced, of using expedients never heard of in this nation before, to procure accusations against him; expedients which they cannot show to have been at any time necessary for the punishment of a man really wicked, and which, by bringing guilt and innocence into the same danger, leave us at liberty to imagine, that he is clear from the crimes imputed to him, even in the opinion of those who pursue him with the fiercest resentment, and the loudest clamours.

It may well be imagined, my lords, that those whom he has so long defeated by his abilities, see themselves now baffled by his innocence; and that they only now persecute his character, to hide the true reason for which they formerly attacked his power.

I hope, my lords, I shall be easily forgiven for observing, that this is a testimony of uncorrupted greatness, more illustrious than any former minister has ever obtained; for when was it known, my lords, that after a continuance of power for twenty years, any man, when his conduct became the subject of publick examination, was without accusers?

I cannot, for my part, but congratulate the noble person upon his triumph over malice; malice assisted by subtilty and experience, by wealth and power, which is at length obliged to confess its impotence, to call upon us to assist it with new laws, to enable it to offer a reward for evidence against him, and throw down the boundaries of natural justice, that he may be harassed, censured, and oppressed, upon whom it cannot be proved that he ever deviated from the law, or employed his power for any other end than the promotion of the publick happiness.

Had the officers of the crown, my lords, when his influence was represented so great, and his dominion so absolute, projected any such measures for his defence; had they proposed to silence his opponents by calling them to a trial, and offered a stated price for accusations against them, how loudly would they have been charged with the most flagrant violation of the laws, and the most open disregard of the rights of nature; with how much vehemence would it have been urged, that they were intoxicated with their success, and that in the full security of power they thought themselves entitled to neglect the great distinctions of right and wrong, and determined to employ the law for the completion of those purposes, in which justice would give them no assistance.

I doubt not that your lordships will easily perceive, that this censure is equally just in either case; that you will not allow any man to be prosecuted by methods which he ought not to have used in his own case; that you will not expose any man to hardships, from which every other member of the community is exempt; that you will not suffer any man to be tried by hired evidence; and that you will not condemn him whom the law acquits.

Lord BATHURST spoke next, in substance as follows:--My lords, the question under our consideration has been so long and so accurately debated, that little can be added to the arguments on either side; and therefore, though I think it necessary on so important an occasion, to make a solemn declaration of my opinion, I shall endeavour to support it, not so much by any arguments of my own, as by a recapitulation and comparison of those which have been already heard by your lordships.

It has not been denied, that the punishment of crimes is absolutely necessary to the publick security; and as it is evident, that crimes cannot be punished unless they are detected, it must be allowed, that the discovery of wicked measures ought to be, in a very great degree, the care of those who are intrusted with the government of the nation; nor can they better discharge their trust, than by defeating the artifices of intrigue, and blocking up the retreats of guilt.

This, likewise, my lords, is admitted with such restrictions as seem intended to preclude any advantage that might be drawn from the appearance of a concession; for it is urged, that guilt is not to be detected by any methods which are not just, and that no methods are just which are not usual.

The first position, my lords, I have no intention to controvert; as it is not to violate justice, but to preserve it from violation, that this bill has been projected or defended. But, my lords, it is to be observed, that they who so warmly recommend the strictest adherence to justice, seem not fully to understand the duty which they urge. To do justice, my lords, is to act with impartiality, to banish from the mind all regard to personal motives, and to consider every question in its whole extent, without suffering the attention to be restrained to particular circumstances, or the judgment to be obstructed by partial affection.

This rule, my lords, seems not to have been very carefully observed, by the most vehement advocates for justice in the case before us; for they appear not to be solicitous that any should receive justice, but the person mentioned in the bill; they do not remember, that the publick has cried out for justice more than twenty years; for justice, which has not yet been obtained, and which can be obtained only by the method now proposed.

It is necessary, my lords, for those who are so watchful against the breach of justice, to prove that any means can be unjust which have no other tendency than the detection of wickedness, of wickedness too artful or too powerful to be punished by the common rules of law.

The introduction of new methods of prosecution, is the natural consequence of new schemes of villany, or new arts of evasion; nor is it necessary that precedents should be produced, when the wisdom of the legislature concurs in acknowledging the necessity of extraordinary measures. Though our constitution is in the highest degree excellent, I never yet heard that it was perfect, and whatever is not perfect may be improved. Our laws, however wise, are yet the contrivance of human policy; and why should we despair of adding somewhat to that which we inherit from our ancestors? Why should we imagine, that they anticipated every contingency, and left nothing for succeeding ages?

I think, my lords, with the highest regard both of our laws, and those by whom they were enacted, but I look with no less veneration on this illustrious assembly; I believe your lordships equal to your progenitors in abilities; and therefore, since you cannot but outgo them in experience, am confident that you may make improvements in the fabrick which they have erected; that you may adorn it with new beauties, or strengthen it with new supports.

It cannot, at least, be denied, that your lordships have all the power of your ancestors; and since every law was once new, it is certain they were far from imagining that there was always a necessity of inquiring after precedents. If the argument drawn from the want of precedents be now of any force, let it be proved that its force was less in any former reign; and let it be considered how our government could have attained its present excellence, had this house, instead of applying to every grievance its proper remedy, been amused with turning over journals, and looking upon every new emergence for precedents, of which it is certain that there must have been a time in which they were not to be found.

In all regulations established by the legislature, it is sufficient that they do not produce confusion by being inconsistent with former laws, that they unite easily with our constitution, and do not tend to the embarrassment of the machine of government. This consideration, my lords, has been in a very remarkable manner regarded by those who drew up the bill before us; a bill of which the noble duke has proved, that it will be so far from perplexing our judicial proceedings, that it will reconcile the law to itself, and free us from the necessity of obeying one precept by the neglect of another.

The arguments of the noble duke are such as, in my opinion, cannot be answered, or heard impartially without conviction. The maxims quoted by him are each of them incontestably true; they are, on this occasion, incompatible; and this is the only method by which they can be reconciled.

Nor has he only shown the propriety of the bill by irrefragable reasons, but has proved, likewise, that it is consistent, not only with the constitution of our government, but with the practice of our ancestors; he has shown, that it may be supported not only by reason, but by bills of the same kind, enacted on occasions of far less importance.

He has proved, my lords, all that the most scrupulous inquirer can wish; he has made it evident, that the bill would be proper, though it were unprecedented; he has produced many precedents in support of it, and has thereby evinced, that the only present question is, whether it is just? To the precedents alleged by him, it has been objected, that they differ in some particulars. But when, my lords, did any two actions, however common, agree in every circumstance? Relations may be complicated without end, and every new complication produces new appearances, which, however, are always to be disregarded, while the constituent principles remain unvaried.

If we consider the difficulties in which the opponents of the bill have involved themselves, it will not be easy to think well of a cause, which gives birth to such wild assertions, and extravagant opinions. They have first, by requiring precedents, determined, that our constitution must be henceforward for ever at a stand; and then, by declaring that no precedents are of any weight, in which every circumstance is not parallel to the case in debate, have debarred us from the repetition of any occasional law; they have declared, almost in plain terms, themselves useless, and destroyed that authority at once, which they seem so much afraid of communicating to the commons.

But, by none of their arts of subtle distinction, my lords, have they been able to evade the argument which arises from the conformity of this bill to the common practice of our courts; an argument, which has produced no other answer than loud declamations; against the indecency of comparing with pickpockets and highwaymen, a noble person, a minister of acknowledged merit, long graced with the favour of his sovereign, and long invested with the highest trust.

I, my lords, am very far from pleasing myself with licentious or indecent language; I am far from envying any man that exaltation which he obtains either by good or by bad actions; and have no inclination of levelling the person, whose conduct I desire to see examined, with the profligate or infamous. Yet I cannot forbear to observe, that high rank is an aggravation of villany; that to have enjoyed the favour of his sovereign, is no defence of him that has abused it; and that high trust is an honour only to that man, who, when he lays down his office, dares stand an inquiry.

Had there been no precedent in our judicial proceedings, my lords, which bore any resemblance to this bill, there would not from thence have arisen any just objection. Common proceedings are established for common occasions; and it seems to have been the principle of our ancestors, that it is better to give ten guilty persons an opportunity of escaping justice, than to punish one innocent person by an unjust sentence. A principle which, perhaps, might not be erroneous in common cases, in which only one individual was injured by another, or when the trial was, by the law, committed to a common jury, who might easily be misled.

They might likewise imagine, my lords, that a criminal, encouraged by a fortunate escape to a repetition of his guilt, would undoubtedly some time fall into the hands of the law, though not extended on purpose to seize him; and, therefore, they constituted their proceedings in such a manner, that innocence might at least not be entrapped, though guilt should sometimes gain a reprieve.

But in the present case, my lords, every circumstance requires a different conduct. By the crimes which this bill is intended to detect, not single persons, or private families, but whole nations, and all orders of men have long been injured and oppressed; and oppressed with such success, that the criminal has no temptation to renew his practices; nor is there any danger of an erroneous sentence, because the trial will be heard by this house, by persons whose integrity sets them above corruption, and whose wisdom will not be deceived by false appearances.

This consideration, my lords, affords an unanswerable reply to those who represent the bill as ill-concerted, because the evidence to be procured by it, is the testimony of men, partners, by their own confession, in the crimes which they reveal.

Every court, my lords, examines the credibility of a witness; and the known corruption of these men may be properly pleaded at the trial, where your lordships will balance every circumstance with your known impartiality, and examine how far every assertion is invalidated by the character of the witness, and how far it is confirmed by a corroboratory concurrence of known events, or supported by other testimonies not liable to the same exception.

Thus, my lords, it may be observed how quickly the clouds are dispersed with which interest or perverseness have endeavoured to obscure the truth, and how easily the strongest objections which the greatest abilities could raise against this bill are confuted, or how apparently, when they are closely examined, they confute themselves.

One of the objections that requires no answer is that which has been raised with regard to the extent of the indemnity offered in the bill, which, in the opinion of those that opposed it, ought to be restrained to particular persons. But that it is chiefly, if not solely, intended to be applied to those who have refused to answer the questions of the committee, I believe every lord in this house is fully convinced; it was, however, necessary to draw it up in general terms, lest other artifices might have been employed, and lest, by pointing out particular persons, opportunity might have been given to deprive the publick of their evidence, by prevailing upon them to withdraw.

The bill was justly styled, by a noble lord, a bill to prevent _an inquiry from being impossible_. The difficulty of inquiries for the publick is well known; and the difficulty arises chiefly from the inability of the people to reward their advocates, or their evidence. The state of the court, my lords, is very different; the crown can not only pardon, but advance those that have, on any occasion, promoted its interest; and I hope it will not be too much power to be for once granted to the people, if they are empowered to throw a simple indemnification into the balance, and try whether with the slight addition of truth, and reason, and justice, it will be able to weigh down titles, and wealth, and power.

It has been urged, that there is danger lest this bill should become a precedent. I hope, my lords, the same occasion will not often happen; and whenever it shall hereafter occur, the precedent of passing the bill will be much less dangerous than that of rejecting it.

I hope it is not necessary to say more on this occasion; yet I cannot forbear to remind some lords of the fatal consequences which at critical conjunctures they have often dreaded, or appeared to dread, from a disagreement of this house with the commons. At this time, in which the nation is engaged in war, when the whole continent is one general scene of discord and confusion; when the wisest counsels, the firmest unanimity, and the most vigorous measures are apparently necessary, it might not be improper to reflect, how unseasonably we shall irritate the commons by rejecting this bill, and how justly we shall exasperate the people, by showing them that their complaints and remonstrances are of no weight; that they must expect the redress of their grievances from some other power; and that we prefer the impunity of one man to the happiness and safety of the publick.

Lord ISLAY spoke next to the following purpose:--My lords, as there has in this debate been very frequent mention of extraordinary cases, of new modes of wickedness, which require new forms of procedure, and new arts of eluding justice, which make new methods of prosecution necessary, I cannot forbear to lay before your lordships my sentiments on this question; sentiments not so much formed by reflection as impressed by experience, and which I owe not to any superiour degree of penetration into future events, but to subsequent discoveries of my own errours.

I have observed, my lords, that in every collision of parties, that occasion on which their passions are inflamed, is always termed an extraordinary conjuncture, an important crisis of affairs, either because men affect to talk in strong terms of the business in which they are engaged, for the sake of aggrandizing themselves in their own opinion and that of the world, or because the present object appears greatest to their sight by intercepting others, and that is imagined by them to be really most important in itself, by which their own pleasure is most affected.

On these extraordinary occasions, my lords, the victorious have always endeavoured to secure their conquest, and to gratify their passions by new laws, by laws, even in the opinion of those by whom they are promoted, only justifiable by the present exigence. And no sooner has a new rotation of affairs given the superiority to another party, than another law, equally unreasonable and equally new, is found equally necessary for a contrary purpose. Thus is our constitution violated by both, under the pretence of securing it from the attack of each other, and lasting evils have been admitted for the sake of averting a temporary danger.

I have been too long acquainted with mankind to charge any party with insincerity in their conduct, or to accuse them of affecting to represent their disputes as more momentous than they appeared to their own eyes. I know, my lords, how highly every man learns to value that which he has long contended for, and how easily every man prevails upon himself to believe the security of the publick complicated with his own. I have no other intention in these remarks, than to show how men are betrayed into a concurrence in measures, of which, when the ardour of opposition has subsided, and the imaginary danger is past, they have very seldom failed to repent.

I do not remember, my lords, any deviation from the established order of our constitution, which has not afterwards produced remorse in those that advised it. I have known many endeavour to obviate the evils that might be produced by the precedents which they have contributed to establish, by publick declarations of their repentance, and acknowledgments of their errour; and, for my part, I take this opportunity of declaring, that though I have more than once promoted extraordinary bills, I do not recollect one which I would not now oppose, nor one of which experience has not shown me, that the danger is greater than the benefit.

I have learned, at length, my lords, that our constitution has been so formed by the wisdom of our ancestors, that it is able to protect itself by its own powers, without any assistance from temporary expedients, which, like some kinds of medicines in the human body, may give it the appearance of uncommon vigour, but which, in secret, prey upon its noblest parts, and hurry it to a sudden decay.

But none of all the measures into which I have seen parties precipitated by acrimony and impetuosity, have I known parallel to the bill which is now defended in this house; a bill which I hope we shall have reason to term the wildest effort of misguided zeal, and the most absurd project that the enthusiasm of faction ever produced.

The particular clauses of this bill have been already examined with great acuteness and penetration, and have all been shown to be absurd or useless. I shall, therefore, only add this observation, that the indemnification, however liberally offered, will be wholly, at the disposal of those who shall receive the examinations, by whom, when such discoveries are not made as they may happen to expect, the witnesses may be charged with reserve and insincerity, and be prosecuted for those crimes which could never have been known but by their own confession.

It is not impossible, but that if the bait of indemnification shall be found insufficient to produce testimonies against the noble person, a bill of pains and penalties may be attempted, to terrify those who are too wise to be ensnared by specious promises; for what may not be expected from those who have already sent their fellow-subjects to prison, only for refusing to accuse themselves?

Nor can I discover, my lords, how the most abandoned villains will be hindered from procuring indemnity by perjury, or what shall exclude a conspirator against the life and government of his majesty from pardon, if he swears, that in a plot for setting the pretender on the throne, he was assisted by the counsels of the earl of ORFORD.

It has, indeed, been in some degree granted, that the bill requires some amendment, by proposing that the necessary alterations may be made to such parts of it as shall appear defective to the committee, which would, indeed, be highly expedient, if only some particular clauses were exceptionable; but, my lords, the intention of the bill is cruel and oppressive; the measures by which that intention is promoted are contrary to law, and without precedent; and the original principle is false, as it supposes a criminal previous to the crime.

It is urged as the most pressing argument by the advocates for the bill, that it ought to be passed to gratify the people. I know not, my lords, upon what principles those who plead so earnestly for rigid justice, can endeavour to influence our decisions by any other motives; or why they think it more equitable to sacrifice any man to the resentment of the people, than to the malice of any single person; nor can conceive why it should be thought less criminal to sell our voices for popularity than for preferment.

As this is, therefore, my lords, a bill contrary to all former laws, and inconsistent with itself; as it only tends to produce a bad end by bad means, and violates the constitution not to relieve, but to oppress; as the parts, singly considered, are defective, and the whole grounded upon a false principle; it neither requires any longer debate, nor deserves any farther consideration; it is rather to be detested than criticised, and to be rejected without any superfluous attempt for its amendment.

[The aforementioned lords were all who spoke in this debate. The question being then put, Whether the bill should be committed? It passed in the negative.

Content 47, Proxies 10.--57.
Not content 92, Proxies 17.--109.

But a protest was entered on this occasion, signed by twenty-eight lords; the former part of it was drawn from the speech of the duke of ARGYLE, and the latter part of it from that of lord CARTERET.]

HOUSE OF LORDS, MAY 20, 1742.

ON THE SECURITY AND PROTECTION OF TRADE AND NAVIGATION.

The same day that the lords read a first time the indemnification bill, they read also, for the first time, a bill sent from the commons, entitled, _An Act for the better protecting and securing the trade and navigation of this kingdom in time of war_. As this bill had a remarkable rise, passed the commons without a division, and the end proposed by it was so commendable, it may be proper to give some account of it before we proceed to the debate thereon in the house of lords.

It may be remembered, that we have mentioned great cause of complaint on account of the losses sustained by the British merchants from the enemy's privateers, who were not sufficiently checked. The merchants and traders of London, Bristol, and other cities, having applied to the administration in vain, presented petitions to both houses, setting forth, among other things, "that notwithstanding the growing insolence of the Spanish privateers, the applications of the suffering merchants for protection and redress, had been neglected; that numbers of his majesty's most useful subjects have been reduced to want and imprisonment, or, compelled by inhuman treatment, and despairing of a cartel for the exchange of prisoners, had enlisted in the service of Spain; that there had been various neglects and delays in the appointment of convoys, and some of the commanders of the few that had been granted, deserted the ships under their care at sea, and left them as a prey to the enemy," etc.

One petition farther says, "That the want of ships of force properly stationed, encouraged the enemy to increase the number of their privateers."

Another, "That most of the captures were almost on our coast, in the Channel and soundings, at a time when the naval force of Britain was greater than ever was known, a few ships of which might have ruined the enemy's privateers."

One set of the petitioners apprehend, "that most of the captures might have been prevented, had a few ships been properly stationed on this side cape Finisterre, and the commanders kept to the strictest duty."

Other petitioners "are not a little alarmed, not only at the increase and number of the Spanish privateers lately equipped, but at the unexpected great strength the enemy have lately shown in the Mediterranean, by which their trade must become more precarious than ever."

The last petition delivered in was from the mayor, aldermen, and commons of the city of London, setting forth, "that they had seen a powerful and well-provided fleet remain inactive in our own ports, or more ingloriously putting to sea, without the appearance of any enterprise in view; while our trading vessels were daily exposed to the privateers of an inconsiderable port, and a feeble enemy holds our naval power in derision, to the ruin of trade, the enriching the enemy, and the disgrace of the British name."

Their general request is, "that they may have regular convoys, and that the commanders be ordered not to desert their charge when in danger, that cruisers be properly stationed, subject to such inspection as shall best answer the end designed."

They all concluded with praying, "that the house would make such provision for the future security of the navigation and commerce of these kingdoms as they shall think fit."

The petitions were severally referred to the consideration of a committee of the whole house, and the following orders made for necessary papers to be laid before the house.

1. An account of his majesty's ships of war which have been employed since the beginning of last year, as cruisers for the protection of the trade of this kingdom on this side cape Finisterre, the stations of such ships, and how long ordered to continue thereupon, with the times of their going to sea, and their returning into port; when such ships were cleared, and which of them tallowed, and when respectively.

2. The journals of the commanders of such of his majesty's ships of war as have been employed since the commencement of the present war, as cruisers for the protection of trade on this side cape Finisterre.

3. An account of the ships of war built in any of his majesty's yards, which have been launched since July, 1739, the times when launched, when first put to sea, and on what services employed.

4. An account of the ships of war built in private yards for his majesty's service, in the said time; distinguishing the times when contracted for, when launched, when first put to sea, and on what services employed.

5. An account of the ships and vessels purchased for his majesty's service since the said time, distinguishing when purchased, when first put to sea, and what services employed in.

6. An account of the ships of war appointed as convoys to the trade of this kingdom to foreign parts, since the commencement of the present war, distinguishing the ships appointed, and the particular services, together with the notices given to the traders of the time prefixed for their sailing, and the times they sailed respectively.

7. That his majesty be addressed for the report of the commissioners for executing the office of lord high admiral to his majesty in council, upon the petition of the merchants, relating to their losses during the war, to be laid before the house.

8. That the schoolmaster and a mariner on board his majesty's ship, the Duke, do attend the said committee.

Six days after these orders passed, the said accounts and report were presented to the house by the secretary of the admiralty.

There were also laid before them copies of above one hundred letters, from and to the secretary of state, admirals, ambassadours, consuls, commanders of his majesty's ships, and trading vessels; from the commissioners of the sick and hurt seamen, with heads of a cartel for exchange of prisoners; and memorials and representations from merchants.

Also a list of ships taken since the commencement of the war, and of the prisoners made by the enemy, also letters from several of them relating to their treatment, and from the captain-general of the province where the said seamen were imprisoned, relating to an exchange; several certificates and depositions, and a proposal by the lords of the admiralty for a general exchange of prisoners; also copies of the orders of the commissioners of admiralty to captains and commanders on the enemy's coast.

Petitions from the wives of seamen taken prisoners; letters to and from the principal officers of the enemy, prisoners in Britain, relating to the exchange.

Certificates of the discharge of several prisoners, by the enemy, on promise that a like number of the prisoners in Britain should be discharged.

The secretary of the Admiralty also laid before the house a book of the regulations and instructions relating to the sea-service, established by his majesty in council.

These requisites being laid before the house of commons, they went into a committee on the twenty-third day of their sitting, heard one of the petitioners, several witnesses, and desired to sit again.

In the mean time were presented to the house seventeen other letters concerning sea affairs, and an account when the East India company first applied, since the war began, for a convoy to St. Helena, and when they sailed, and what number of ships came under the said convoy, and on the twenty-fifth day of sitting the committee heard more witnesses.

Next day they proceeded, when an account was brought in of the Spanish prisoners released, by what orders, and on what conditions; also an account of the number of seamen employed the last year, distinguishing how many at home, and how many abroad, also of the number of ships and vessels of war, distinguishing the rates.

The secretary of the admiralty also presented a list of the names of the merchant ships, and the masters, as have behaved so negligently as to delay the convoys from whom they had taken sailing orders, or that have abandoned the same, or that have been any ways disobedient to the instructions established for good government, with the narration of the facts since the beginning of the war.

Also copies of the reasons given, in writing, by such commanders of his majesty's ships as have been appointed in this war as cruisers on this side cape Finisterre, for leaving their stations, or for coming into port, before the time required by their orders, which papers were sixty-one in number.

All which were referred to the said committee, and then they heard some other evidence, and after farther proceeding desired leave to sit again.

Next day the secretary of the admiralty presented copies of all applications for convoys for ships and cruisers, and what was done thereon, which papers were above forty, of which eight were petitions to get convoys for single ships.

All which papers and accounts were referred to the said committee, which was to proceed again on the twenty-eighth day, but the houses were desired to adjourn for fifteen days.

When the house met again, the said secretary presented copies of all complaints made since the war began, to the commissioners of the admiralty, against, or relating to commanders leaving the trade under their convoy, or their stations, or for impressing seamen out of outward-bound ships after clearance, or homeward-bound before they reached their port, or for other misbehaviour, or injury done by them to trade, with an account of what has been done thereupon.

These papers, including the complaints and the orders given thereupon, which are much the greater part, with justifications from the commanders, were in number forty; but we ought not to omit that amongst them there is a representation of the Portugal merchants in favour of one commander, captain Ambrose, who had taken several of the enemy's privateers.

On the thirty-third day of sitting were presented, from the office for the sick and wounded seamen, copies of the returns from such persons as have been empowered to pay his majesty's bounty to the British subjects, prisoners in the ports of Spain, distinguishing the number of men paid each month, and what ships they belonged to, and when taken.

Also an account of the number of men who have been put sick on shore from his majesty's ships, into the hospitals last year, distinguishing how many died, and how many were returned to the ships, or run away, or were otherwise disposed of.

Which papers were referred to the said committee, and the house went into it, heard farther evidence, and the chairman desired leave to sit again.

Accordingly they proceeded on this affair the thirty-fifth day, and heard farther evidence.

On the thirty-seventh day more papers were laid before the house, being three several orders issued by the admiralty to the commanders of his majesty's ships in the ports of Portugal, or such as shall have occasion to put into the said ports; also an estimate of the debt of the navy; which were referred to the said committee, and the house went into it, and came to several resolutions, which were reported the next day, and are as follow.

The first resolution was, that it appeared to the committee, that notwithstanding the repeated applications of the merchants for cruisers to be properly stationed for the protection of the trade of this nation from the privateers of Spain, the due and necessary care has not been taken to keep a proper number of his majesty's ships employed in that service, more especially in and near the Channel and soundings; for want of which, many ships had been taken by the enemy, some of them of considerable value, to the great loss of many of his majesty's subjects, the great advantage and encouragement of the enemy, and the dishonour of this nation. II. That the detention of the ships bound to Portugal for near twelve months, by the refusal of protections for some time, and the delay of convoys afterwards, gave our rivals in trade an opportunity of introducing new species of their woollen manufactures into Portugal, to the great detriment of this kingdom.

Upon this foundation, the house ordered that a bill be brought in for the better protecting and securing the trade and navigation of this kingdom in times of war; and that the lord mayor of London (since deceased) and sir John BARNARD, do prepare and bring in the same.

On the first day of April, being the fifty-ninth of their sitting, the lord mayor of London presented, according to order, a bill for the better protecting and securing the trade and navigation of this kingdom in time of war; and the same was received and read a first time, and ordered to be read a second time, and to be printed.

By reason of some omission, we do not find when the bill was read a second time; but, on the seventy-second sitting, a day was appointed to go into a committee on the seventy-ninth, when they did, and made several amendments, which were reported on the eighty-second day, and with amendments to one of them, were agreed to, and ordered to be engrossed. At their eighty-seventh sitting the bill was read a third time and passed, and the lord mayor of London was ordered to carry the bill to the lords, and desire their concurrence. And three days after it was read by their lordships a first time, and is as follows; the words within these marks [ ] showing how the blanks were filled up, and the amendments made in its progress through the house of commons, with notes of the words left out.

_An Act for the better protecting and securing of the trade and navigation of this kingdom in times of war._

"Whereas it is necessary, in times of war, that a sufficient number of ships should be appointed, and kept constantly employed, as cruisers, in proper stations, for the protection and security of the trade and navigation of this kingdom; be it enacted by the king's most excellent majesty, by and with the advice and consent of both houses of the senate in this present council assembled, and by the authority of the same, that when and as often as this kingdom shall be engaged in war with any kingdom or state in Europe, (over and above the ships of war for the line of battle, and for convoys to remote parts,) such a number of ships of war as shall be sufficient for the protection and security of the merchant-ships, in their going out and returning home, shall be constantly employed as cruisers, or for convoys, in and near the British Channel and soundings, and in such other stations on this side cape Finisterre, as shall by the lord high admiral, or commissioners for executing the office of lord high admiral of Great Britain for the time being, be judged most proper for that purpose; the aforesaid ships of war to be careened at least [three] times in the year, or oftener, if there be occasion; and that the seamen on board any such cruisers shall not be turned over into any other ship or ships, but such only as shall be appointed for cruising, or home convoys, according to the tenour of this act.

(2.) "Provided always, and be it enacted by the authority aforesaid, that nothing herein contained shall restrain, or be construed to restrain, the lord high admiral or commissioners for executing the office of lord high admiral for the time being, from directing any of the ships which shall be appointed to be cruisers in pursuance of this act, to be employed in the line of battle, (in case of great necessity,) on this side cape Finisterre, without whose immediate direction, the said ships shall be always cruising, or employed as home convoys, except when they are careening or refitting.

(3.) "And be it enacted by the authority aforesaid, that the lord high admiral, or commissioners for executing the office of lord high admiral for the time being, shall, on or before the [first day of July next] authorize and appoint a commissioner of the navy, or some one or more person or persons, who shall constantly reside at such place or places as his majesty shall direct; by virtue of which appointment, such person or persons, in the place or places for which he or they shall be appointed, shall superintend or oversee every thing relating to the aforesaid cruisers; and shall take care that every thing necessary be immediately provided for all and every the aforesaid cruising ships of war, that shall come into any port by stress of weather, or to careen or refit; and as soon as they or any of them are refitted, shall order all or any of the said ships of war to put to sea again as soon as possible.

(4.) "And be it farther enacted by the authority aforesaid, that from and after the said [first day of July] if any captain, or other officer on board any of his majesty's ships of war, shall wilfully spring, carry away, or lose any mast or masts of any such ship [Footnote: Left out, _or ships_.], or shall make any false pretence or excuse for leaving the station on which such ship or ships shall be appointed to cruise, or shall return into port before the expiration of the term appointed for his cruise, without just and sufficient reason for so doing, every captain or officer offending in any of the aforesaid cases, [shall be punished by fine, imprisonment, or otherwise, as the offence by a court-martial shall be adjudged to deserve.]

(5.) "And to the intent that it may be the more easily known what service the aforesaid cruisers shall every year perform, be it enacted by the authority aforesaid, that the commissioner of the navy in each of the outports, or such person or persons as shall, for that purpose, be appointed by the lord high admiral, or commissioners for executing the office of lord high admiral for the time being, shall transmit to him or them, every [three months] a distinct and separate account digested into proper columns, of the time when any of the ships appointed to be cruisers, sailed out of port, when such ship came in, together with the number of days, cast up, that such ship was out upon duty, and the reasons of her putting into port, and the time and reasons of her stay there; with an account how often, and the times when each of the said ships have been careened every year; and that the lord high admiral, or commissioners for executing the office of lord high admiral, for the time being, shall cause copies of the said accounts to be laid before both houses of the senate within [eight days] after their meeting.

(6.) "And be it farther enacted by the authority aforesaid, that the lord high admiral, or commissioners for executing the office of lord high admiral, for the time being, shall, on or before the said [first day of July] nominate and appoint such a number of the ships of war, as shall be sufficient for the purposes aforementioned, to be cruisers or convoys on this side cape Finisterre for the current year; and shall afterwards yearly, and every year, during the present or any future war, between the [first day of November] and the [first day of December] nominate and appoint a sufficient number of ships of war to be cruisers or convoys on this side cape Finisterre for the year ensuing; and as often as any of them shall happen to be taken or lost, shall, as soon as may be, appoint others in the room of every ship so taken or lost.

(7.) "And whereas it is of the utmost importance to the trade of this nation, that the captains or commanders of his majesty's ships of war appointed for convoys to and from remote parts, should take due care of the merchant ships committed to their charge; be it, therefore, enacted by the authority aforesaid, that every captain or commander of any of his majesty's ships of war, who, on or after the bill shall commence, shall be appointed convoy or guard to any merchant ships or vessels, or who shall have any merchant ships or vessels under his charge, do and shall diligently attend upon such charge without delay, and in and during the course of the voyage take the utmost care of such merchant ships and vessels, and do and shall every evening see that the whole number of the said merchant ships and vessels under his convoy be in company with him; and in case he shall be obliged in the night time to Jack, or alter his course, or lie-to, that he do and shall make the proper signals, to give the merchant ships and vessels, under his convoy, notice thereof; and if in the morning he shall find any of the said merchant ships and vessels to be missing, he shall use his utmost endeavours to rejoin them, and shall not willingly or negligently sail away from, leave, or forsake such merchant ships or vessels, until he has seen them safe, so far as he shall be directed to convoy them; and in case any of the said merchant ships or vessels shall be in distress, he shall give them all proper and necessary relief and assistance, as far as he is able; and in case any such captain or commanding officer shall refuse or neglect to do all or any of the matters aforesaid, every such captain or commanding officer shall [be condemned to make reparation of the damage to the merchants, owners, and others, as the court of admiralty shall adjudge; and also be punished according to the quality of his offence, as shall be adjudged fit by a court-martial.]

(8.) "And whereas it is of the utmost importance to our settlements in America, and the trade thereof [Footnote: Left out, "in time of war."], that the commanders of the ships stationed there, should use their best endeavours for the protection and security of such trade, [and the colonies there;] be it farther enacted by the authority aforesaid, that [Footnote: Left out, "during the continuance of any such war."] none of his majesty's ships, which shall be stationed at any of the said settlements, shall quit or leave their stations under pretence of going to careen or refit, or under any other pretence whatsoever, without an especial order from the lord high admiral, or commissioners for executing the office of lord high admiral, (or the commander in chief of his majesty's ships of war in those seas, or in America, [Footnote: These words were added.]) for the time being. [Footnote: Left out, "or unless the commander or commanders of such ship or ships shall be ordered off their station, to be employed in the line of battle in the American seas, which shall not be done, but in cases of the greatest necessity."]

(9.) "And to the end that it may appear what service the ships so stationed shall perform, be it enacted by the authority aforesaid, that the captain or commanding officer on board every such ship or vessel, shall keep a distinct and separate account, digested into proper columns, of the times when the said ship or vessel sailed out of port, when such ship or vessel came in, the service she was upon, together with the number of days cast up, that such ship or vessel was out upon such duty, and shall cause the same to be fairly entered in one or more book or books, to be kept for that purpose; such entries to be digested in proper columns, and to be [every six months] transmitted [Footnote: Left out, "together with the duplicates thereof."] to the captain or commanding officer of every such station ship, to the lord high admiral, or commissioners for executing the office of lord high admiral for the time being, and shall also send duplicates of the said accounts at the first opportunity.

(10.) [Footnote: This clause was added in the committee.] "And be it farther enacted by the authority aforesaid, that the commanders of his majesty's ships of war, on their arrival at any of the said settlements, shall deliver a copy of the orders they shall have received from the lord high admiral, or commissioners for executing the office of lord high admiral of Britain for the time being, so far as they relate to the protection of the said colonies, and of the trade of the said colonies, to the governour and council of the respective colony or plantation where they shall be stationed; which orders shall be entered into the council books of such colony or plantation respectively; and the said governour and council are hereby authorized and empowered to give such directions in writing to the captains and commanders of such stationed ships, as they shall think will be most for the protection and security of their trade: and the said captains and commanders are hereby required to conform to, and observe the same, provided the same do not contradict the instructions they shall have received from the said lord high admiral, or commissioners for executing the office of lord high admiral for the time being."

HOUSE OF LORDS, JUNE 1, 1742.

The bill for the security and protection of trade and navigation being this day read a second time in the house of lords, the earl of WINCHELSEA, who had lately accepted the chair at the admiralty board, rose and spoke as follows:

My lords, I know not by what accident the numerous defects and general impropriety of this bill have escaped the attention of the other house; nor is there any necessity for examining the motives upon which it passed, or of inquiring whether its reception was facilitated by the popularity of the title, the influence and authority of those by whom it was proposed, or the imaginary defects of our present regulations, which have been on some occasions represented to be such as it is scarcely possible to change but for the better.

The knowledge and experience of those who concurred in sending this bill for your lordships' approbation, cannot but produce some degree of prepossession in its favour; for how can it be imagined, my lords, that men of great abilities and continual opportunities of observation, should not be well versed in questions relating chiefly to their private interest, and discover the nearest way to their own success!

And yet, my lords, it will be found that their sagacity has, perhaps, never so apparently forsaken them as on this occasion, that no proposition was ever laid before this house, in which more contracted motives were discovered, and that the bill is such as might rather have been expected from petty traders, unacquainted with the situation of kingdoms, the interests of princes, the arts of policy, the laws of their own country, and the conduct of former wars; than by merchants of extensive traffick, general correspondence, and great attainments.