Motion made that the Bill, with the Amendments

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Wednesday, December 20, 1775.

The Order of the Day being read, for the third reading of the Bill, and for the Lords to be summoned,

The said Bill was accordingly read the third time.

It was moved "That the said Bill, with the Amendments, do pass."

The Marquis of Rockingham said: I have a Petition in my hand, to present to your Lordships, from the Merchants of Bristol, complaining of the hardships they are likely to suffer should this bill, in its present form, pass into a law. I do not mean to oppose the bill in this stage, but purely to explain a matter relative to the object of this petition. When this petition was offered to be presented in the Committee by a noble Duke now absent, [Duke of Manchester,] the noble Earl over the way, [Lord Sandwich,] rose, and observed that he had a clause which would entirely obviate the apprehensions expressed in the petition. The noble Duke, on this assurance, acquiesced; but it has since been discovered by the friends of the petition, that the amendment proposed by the noble Earl, and agreed to by your Lordships, by no means comes up to the idea or wishes of the petitioners. It is on that account, therefore, that I would recommend to your Lordships, before the remedy be out of your power, to bestow some attention to the clause; and as you have declared a desire to relieve the merchants in every respect as far as is consistent with the principle of the bill, by giving the clause a review, you will then have it in your power to determine whether it might not, with great propriety, still be permitted to undergo further alteration. The amendment I allude to is that which fixes the time for ships, not immediately coming within the description of this bill, from the 1st of January to the 1st of August. As the Restraining Bills of last year permitted the importation of lumber, and other commodities, from America into the West-India Islands; and as by this bill provisions are made which entirely alter the nature of that indulgence, and annex

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different conditions, what will be the consequence, but that goods shipped under the faith of the two Restraining Acts will be liable to confiscation and seizure from not knowing that the law has been altered by the present bill? To remedy this evil, this unprecedented hardship and injustice, what I would suggest to your Lordships would be, to change the commencement of the operation of this bill from the 1st of January to the 1st of March, by which means the people and merchants concerned in the West-India trade will have timely notice of the alteration made by this bill, and by that means will have it in their power to prevent the confiscations and seizures which must otherwise be the inevitable consequence of their ignorance and want of information. On the whole, my Lords, if any relief be really intended to be given to the trading and mercantile part of this country, no possible objection can be raised to the indulgence now desired; if not, and that the property of the merchants, planters, and others, concerned in the West-India trade is to be confiscated, contrary to the faith of two solemn acts of Parliament, the effects of such a procedure must indeed be terrible; and the innocent as well as the guilty will then have good cause to be alarmed, finding themselves suffering under the pressure of such a weight of power, breaking into acts of the most wanton violence and most unjustifiable oppression.

The Earl of Suffolk, It is somewhat extraordinary that this bill should, in this stage, meet with an opposition, after having been so fully before debated, and every objection to it fairly and fully obviated. For my part, I think despatch is now become necessary; and, for that reason, I shall not be for admitting any further delay. As to the petition the noble Marquis now offers to present, I take it to be entirely irregular. His Lordship should have offered it before the bill was read a third time. The question now before your Lordships cannot relate to any particular clause or amendment in the bill: those are already decided on.

Viscount Weymouth. The question cannot be postponed, though we were ever so desirous. It is, in my opinion, to tally irregular, in this stage of the bill, to offer any matter whatever but what may go to the total rejection of the bill. The matter now urged should have been offered on the report. It is now too late, and, consequently, I shall be for having the question now before the House strictly adhered to.

The Earl of Sandwich. I differ extremely from the noble Marquis in the construction of the clause alluded to. No bill ever passed both Houses in a more deliberate manner than the present. It was very maturely considered and debated in the other House. That House showed every possible inclination to render it as palatable as was consistent with the principle of it; and admitted several alterations in order to render it innoxious to all those against whom it was not immediately directed. I took the liberty to propose some amendments myself to render it still less liable to objections which might be made by such as imagined their property to be affected; yet, after all this candour and concession, to come in this stage to offer fresh clauses and amendments is, I confess, my Lords, what I did not at all look for or expect. I am clearly of opinion, that if the amendment suggested were to take place, it would, in a great measure, totally defeat the intentions of the bill, because the notice given by the amendment would enable all the parties to ship such quantities of goods under that indulgence, that every substantial operation of the bill would be prevented. If, however, any captures or seizures should happen on account of want of information, it will be a good ground for obtaining such redress as the circumstances of the case may deserve; but as to making any amendment, which might open the door to collusion, or for evading the principle or different provisions of this bill, I must fairly own I am totally against it. Besides, if the reasons for the proposed amendment of the noble Marquis were much stronger, or would be productive of the consequence I have pointed out, yet, by the established rules and orders of this House, it is now too late to make any motion for altering or amending any of the clauses of the bill.

The Earl of Shelburne. The indulgence your Lordships showed me on a former occasion would have prevented me from again troubling you on the subject. I should have thought myself precluded from opposing the bill in this stage, after haying so fully expressed my sentiments on the second reading, if I had not considered myself called on to

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inform your Lordships of a particular circumstance which has come to my own knowledge, as well as to state an objection or two to the bill which did not occur to me when first I delivered my sentiments on this subject. The fact is, that a merchant, whom I never saw before, applied to me, and told me that a great number of vessels were now loading, under the express provisions of the Restraining Act of last year; that the proprietors of those vessels and cargoes would be liable to have them seized and confiscated: this he represented as a grievous hardship, as the merchants in America, Great Britain, and the West-Indies, were brought into this very predicament by the confidence they had in a British act of Parliament. I told the gentleman he would have acted much more properly to have applied to your Lordships for redress: but I nevertheless thought it my duty to mention it, as a matter well deserving your Lordships' consideration.

On a former occasion I spoke very fully to this bill; but I cannot avoid mentioning one part of it, the concluding clause, which authorizes the Crown to delegate to others the power of pardoning; and I understand, since I last delivered my thoughts on this subject, an amendment has been made to prevent any doubt which might hereafter arise, by the penning of the clause, of such a right being inherent in the Crown. I have, my Lords, consulted several very able and respectable lawyers on the subject, and not one of them has acceded to the doctrine in its full extent. I have looked into several great authorities, as they lie scattered in books, concerning this doctrine, and not one of them comes up to the language of this bill. One of them, in particular, lays great stress on the statute passed in the reign of Henry VIII, which takes away this delegated power from the Lords Marchers, and vests it "forever solely" in the Crown. In short, after the best inquiries I have been able to make, I am not satisfied that this claim of delegating the power of pardoning in the lump is at all inherent in the Crown. Some are of opinion that this power may be given by his Majesty to individuals, others in the lump, others in America only; but not one that it is inherent in the Crown generally and unconditionally. Informed as I am, I speak with all possible diffidence on a subject of such a nature, and with all possible deference to the judgment of the noble and learned Lords present who declared, when this subject was last under discussion, clearly in support of this power; but yet, after all, I .trust the noble Lords will excuse me for expressing a wish that a point of such magnitude, a legal question involving in it such important consequences, were not hurried till an opportunity were given to consider this matter more fully, at which time a noble Lord, whose state of health will not permit him at present to attend, [Lord Camden,] may probably be able to deliver his opinion, and this House, and the nation at large, be satisfied that an improper power is not vested in the Crown by this bill. The Greeks and Romans had some wars of the kind that is now carrying on against America by this country. They never gave them the name of Rebellions, nor acted against them as alien enemies. The latter, in one of a similar nature, called it the Social War. I call this a Constitutional War. I say this bill is fraught with innumerable mischiefs. Instead of exacting obedience, it declares nothing but a wish for separation; it meditates open destruction, not coercion. It goes not to the punishment of Rebels and the protection of the innocent. It is made contrary to every rule observed in commotions of this kind. Instead of being directed against individuals who are the supposed authors of this rebellion, it is carried on as if against foreign enemies; war is made on the community at large. In fine, the principle of the bill is to punish the innocent as well as the guilty. But if the principle of the bill be bad, the provisions of it are still worse. To carry it into execution, what are you to do? The framers of the bill, in order to stifle and hide the fixed aversion the people in general entertain for the service, have provided that the plunder shall be shared among the captors, by way of encouragement. What is this but sacrificing the merchant to the seaman? Again, the glaring cruelty and injustice of such a procedure have induced the friends of the bill to admit some clauses in order to soften the unexampled rigour of the hardships complained of. Thus the seaman in turn is sacrificed to the merchant. In such a state of uncertainty, what are we to conclude from this heterogeneous mixture of indulgence and severity, by which

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the merchant is neither sure of his property, nor the seaman of the produce of his capture, when all will be law, litigation, and confusion? It directly calls to my memory the story relative to Sir Charles Wager, alluded to in a former debate by a noble and learned Lord near the table, [Mansfield,] who, after taking a very valuable prize, and having her condemned, when the balance came to be struck, found himself a considerable loser. On the whole, I think the principle of the bill wrong, the provisions absurd, oppressive, cruel, and contradictory, and the measure, taken together, to the last degree hasty, rash, unjust, and ruinous.

Lord Mansfield. I did not come prepared the last day this bill was under consideration to speak to it, though I delivered my sentiments upon some particular matters which happened there to come into discussion; nor should I now trouble your Lordships, did I not think myself called upon to assign my reasons for assenting to it. The noble Lord says this bill is hasty, rash, ruinous, and unjust. I shall beg the patience of the House while I endeavour to exculpate myself from that part of the censure which may be presumed to fall to my share; as giving it my support arises from the fullest conviction of its utter necessity in the present state of things. Before, however, I speak to the principle of the bill, I shall explain one matter which has been frequently mentioned. It has been objected that one of the clauses has a retrospective view, as it legalizes all seizures made before the passing of this bill. This, my Lords, is not unusual: it has, indeed, been the uniform practice in such cases. It is founded in justice; because, if such seizures were made wantonly, or without cause, and not upon the only ground on which they can be fairly defended, that of manifestly advancing the publick service, the clause in this bill will not protect or indemnify any act of that kind. Besides, what is the true legal construction of this clause? Not, surely, to seize the property and confiscate it. No; only to defend the actors against personal actions, the persons complaining being still left at full liberty to pursue their remedy at law, in order to recover their property or the value of it. It would, indeed, be impossible for officers in high command to act, if, for measures taken for the good of the State, they should be liable afterwards to be ruined by the almost infinity of suits that might be instituted against them when the commotions were over, and everything returned into its former tranquil state. The noble Lord seems to doubt the right of delegating the power of pardoning being inherent in the Crown; for my part, I am perfectly clear it has from the first establishment of the monarchy. General Gage exercised it on a late occasion, where, by proclamation, he promised pardons to every man in America but one or two individuals. It has been always the practice. Every General of an Army acting against Rebels is vested with this power. Indeed, I believe there never was a rebellion in this country, or its dominions, in which this power was not actually exercised. The Rebels taken in 1715 at Preston claimed it as an agreement, as the terms of capitulation. It was not granted: but the power was never disputed. A night or two ago I was reading the Register, a book of the first law authority extant. It is full of original writs. So early as the reign of Edward I, I find this doctrine of pardoning in the lump fully confirmed. I found there a dedimus potestatem, directed by that King to certain persons therein mentioned, to pardon all the people of Galloway. Was not this pardoning in the lump? Was not this pardoning a whole community? As to the original matter that gave rise to this bill, I always was of opinion that the people of America were as much bound to obey the acts of the British Parliament as the inhabitants of London and Middlesex. I always thought, that ever since the peace of Paris, the Northern Colonies were meditating a state of independency on this country. They have told you as much in one of the publications of the Continental Congress, wherein they thank Providence for inspiring their enemies with the resolution of not attempting to carry their schemes of dominion into execution till they had arrived at a growth and strength sufficient to resist them. I have not a doubt on my mind but this has been their intention from the period I allude to. Whatever might be their wishes before that time, their situation rendered it impracticable, because it was this country that could alone protect them against the power of France, to which their whole frontier lay exposed. But allowing that all their professions were

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genuine, that their inclinations were those of duty and respect towards this country; that they entered into the present rebellion through the intrigues and arts of a few factious and ambitious men, or those who ultimately directed them; that the Stamp Act was wrong; that the Declaratory Law might assert the supremacy over that country, but it ought never to be exercised, nor amount to more than such a power as his present Majesty claims over the kingdom of France — a mere nominal dominion; that no troops should be sent into that country, even to defend them, without their own permission; that the Admiralty Courts should never be made to extend there, though by the trial by jury the parties themselves would be judges; that offenders against the laws and .authority of this country should be tried for offences by persons who themselves were ready to declare they did not think the charges criminal; that no restraints should be laid upon their commerce, though that great bulwark of the riches and commerce of this country, the Act of Navigation, depended on such restraints; that every measure hitherto taken to compel submission to the Parliamentary authority of this country was cruel and unjust; that every Ministry in this country were tyrannick and oppressive, and that the last is worst of all; — yet, admitting all this to be true, my Lords, what are we to do? Are we to rest inactive, with our arms folded, till they shall think proper to begin the attack, and gain strength to do it with effect? We are now in such a situation that we must either fight or be pursued. What a Swedish General said to his men, in the reign of Gustavus Adolphus, just at the eve of a battle, is extremely applicable to us at present: Pointing to the enemy, who were marching down to engage them, said he, "My lads, you see those men yonder; if you do not kill them, they will kill you." If we do not, my Lords, get the better of America, America will get the better of us. We do not fear, at present, that they will attack us at home; but consider, on the other hand, what will be the fate of the Sugar Islands; what will be the fate of our trade to that country. That, my Lords, is a most important consideration; it is the best feather in our wing. The people of America are preparing to raise a navy; they have begun in part; trade will beget opulence, and by that means they will be enabled to hire ships from foreign powers. It is said the present war is only defensive on the part of America. Is that the case? Is the attack on Canada, or the attempt on Halifax, a defensive war? Is the prohibiting all trade and commerce with every other part of the dominions of the British empire — with Ireland, for whom they express such friendly sentiments; is starving the Sugar Islands, acting on the defensive? No; though those people never offended, nor oppressed us, we will distress them, say they, because that will be distressing Great Britain. Are we, in the midst of all the outrages of hostility, of seizing our ships, entering our Provinces at the head of numerous armies, seizing our forts, to stand idle, because we are told this is an unjust war, and wait till they have brought their arms to our very doors? The last Dutch war was generally understood to be unjust; yet that did not prevent us from repelling the invaders when they came up to burn our Navy at Chatham. The causes of the late war were much condemned, but that did not prevent us from pursuing it with vigour. Indeed, the nature of all war is such it ought to be carried on with vigour till the objects which caused it are either obtained, or abandoned as unattainable or not worth pursuing. Neither, I trust, is the case in the present instance; I do not, therefore, consider who was originally wrong; we are now only to consider where we are. The justice of the cause must give way to our present situation; and the consequences which must ensue, should we recede, would, nay, must, be infinitely worse than any we have to dread by pursuing the present plan, or agreeing to a final separation. On those, as well as many other considerations of great weight, I beg leave to differ from the noble Lord who spoke last; for I am satisfied this bill is neither hasty, rash, ruinous, or unjust.

The question was put, "Whether this Bill, with the Amendments, shall pass?"

It was resolved in the affirmative.

A Message was ordered to be sent to the House of Commons, by Mr˙ Leeds and Mr˙ Pepys,

To return the said Bill, and acquaint them that the Lords have agreed to the same, with some Amendments; to which their Lordships desire their concurrence.