Duke of Richmond' s motion, that Mr. Penn be called in to authenticate it

v6:118

Tuesday, November 7, 1775.

The Order of the Day being read, for taking into consideration a Paper intituled "Copy of the Petition of the Congress to the King," delivered to the Earl of Dartmouth by Messrs˙ Penn and Lee, on the 1st of September, 1775,

The said Paper being read by the Clerk,

The Duke of Richmond observed, that he now saw Mr˙ Penn, Governour of Pennsylvania, below the bar; and as some doubt might arise in the course of the debate, whether or not the paper now read was genuine, he urged the propriety of calling that gentleman to authenticate it, as he understood that the Petition was delivered by him into the hands of one of his Majesty' s Secretaries of State.

He then moved "That Mr˙ Penn be called in to authenticate the said Paper."

The Earl of Sandwich opposed this proposition very strenuously. He said such a motion was directly contrary to the constant mode of proceeding adopted by that House. When witnesses were examined at their Lordships' bar, notice was always previously given, and a motion made in pursuance of that notice; nor did he, since his first acquaintance with Parliament, ever recollect an instance of a witness being suddenly called to be examined, without the formalities he had just mentioned. For his part, that was his leading objection; though he suspected the noble Duke who made the motion meant to employ it to very different purposes, to fish for information relative to the matter contained in the paper, as well as to authenticate it.

The Duke of Richmond replied, that he did not well understand what the noble Earl meant by the word "suspect;" suspicions were created by acts, which it was presumed the actor would be desirous to conceal. That could not, however, be the case on the present occasion; for, allowing the noble Lord' s suspicions to be well-founded, he saw nothing in such a procedure of which he need be ashamed. He confessed he should, if Mr˙ Penn was examined, be desirous to learn from that gentleman what he knew relative to the general state of America, presuming no person was better qualified nor none would give it with greater candour and impartiality.

The Earl of Dartmouth said, that such a precedent was now proposed to be established as would, in all probability, if carried, be destructive of all order. Besides, he begged leave to remind the noble Duke, that the very grounds on which it was stated, that of authenticating the Petition, showed there was no necessity for complying with the motion; for he acknowledged the receipt of such a Petition from Mr˙ Penn, and believed himself, and made no doubt but all their Lordships were perfectly of the same opinion, that the paper was genuine.

Lord Camden expressed his surprise that any Lord should oppose the present motion; for, without debating the point of order, which he was convinced fully authorized the propriety of the motion, he should be glad to know what objections the noble Lords in Administration had to it. He was sure it was out of their power to object to it on any reasonable ground.

The Duke of Richmond, in reply to what had fallen from Lord Dartmouth, observed, that however well satisfied the noble Earl and his friends might be that the Petition was genuine, yet he thought the formality of authenticating it became highly necessary, when it was known that Mr˙ Penn did not receive the Petition immediately from the hands of the delegates, it having been sent after him to England, in order to be presented in the manner before described. He urged further, that the Petition being signed by the persons assembled in Congress, in his opinion it would be very

v6:119

proper that Mr˙ Penn, who was acquainted with the handwriting of those persons, should he called to prove it. The Earl of Dartmouth replied, that if that was the main purpose for which Mr˙ Penn was to be called, his examination would answer no end; the paper lying on the table being nothing more than a copy of an original in his office.

The Duke of Richmond insisted still that Mr˙ Penn' s examination would be equally proper, whether the original paper was immediately before the House, or in his Lordship' s office; for, when that gentleman came to be examined at the bar, all that would be desired from him was to know if the paper delivered by him to the noble Lord at the head of the American Department was really signed by the persons whose names were thereunto annexed; that fact once ascertained, the proof would be complete, as their Lordships would then be satisfied that the copy now read was a faithful one, by the assurances given by the noble Lord who had the original in his possession.

Lord Lyttelton spoke chiefly to the point of order, and the numerous inconveniences that must arise if the present motion should be carried, and established into a precedent on future occasions. He said if their Lordships, when summoned to deliberate and debate on any important question, should be surprised by extraneous matter, and witnesses called to the bar to be examined, on points which might introduce other subjects into discussion, it would at once destroy that order and gravity for which their usual course of proceeding was known so eminently to excel; in short it would create that kind of confusion and uncertainty, which, wherever it prevails, is so derogatory to the wisdom and despatch of business, in a deliberative assembly. As for the other part of the precedent, that of calling for vivâ voce proof, to authenticate petitions presented to their Lordships, it was a matter he would never assent to; because, in his opinion, such a condition would be intolerable, and, in many cases, impracticable; for, it would amount to this, that every petition, from any part of the empire, which should in future be presented to that House, whether from the most distant part of the kingdom, from Ireland, America, or the East-Indies, must be authenticated by evidence at their Lordships' bar, in some instances to authenticate its contents, and, in others, to prove the handwriting of the persons who may be supposed to sign it. His Lordship was, however, of opinion, that although it would not be proper to examine Mr˙ Penn, in the manner now moved for, it was competent for any Lord in that House, upon due notice, to call for any person or persons who he might imagine would impart such lights as promised to lead to an elucidation of the subject on which he meant to frame his motion.

The Duke of Richmond observed, that the noble Lords who declared themselves adverse to the motion, on the ground that it was contrary to the usual mode of proceeding in that House, and would establish a precedent which might in future be an impediment to applications to them, in their legislative, deliberative, or judicial capacities, in the way of petition, he hoped would be satisfied, when he assured them that no question was intended to be put to Mr˙ Penn, on which he did not desire it to be previously understood, that any noble Lord might be at liberty to rise and object to it. He said that matters which had fallen from several noble Lords in the course of the debate, and the great unwillingness some of them had shown to have Mr˙ Penn examined, made him feel the urgent necessity of such an examination; because it proved that they dreaded the consequences of such an inquiry, as fatal to the measures they were now hurrying Parliament and the nation blindly and inconsiderately to adopt. For his part, he had not the honour of being personally acquainted with Mr˙ Penn; but, from the gentleman' s religion, the great interest he had in the event of the present unhappy disputes with America, and as proprietor of one of the richest Provinces of that continent, he knew no man who, from religious principles, political moderation, and thorough knowledge of the dispositions of the people of that country, would be more likely to give that sort of information which the House ought to wish to obtain, and which every true lover of his country, he was confident, would endeavour to trace to its most remote sources.

The Duke of Grafton, rejecting the mere matter of order, as unworthy of their Lordships' consideration, said he was

v6:120

extremely sorry to observe such conduct pursued on the other side of the House. The noble Duke who made the motion had pressed it with all imaginable candour; he had even gone so far as to promise for himself, and, in some measure, to pledge the good faith of his friends, that if any question which should, in the course of the proposed examination, seem to be improper, an unconditional objection from any noble Lord would be deemed sufficient reason for his Grace to desist. The aversion to any mode of inquiry, and the fixed resolution to reject every kind of information which might promise to lead to the knowledge of the state of that country, manifested this day, suggested to him very strong fears; fears that the same fatal measures which directed the counsels of last year, were determined still to be pursued. He was very much surprised to hear the same language adopted on the present occasion, though the ruinous and fatal consequences which were produced by the same arguments and the same mistaken counsels of last session, were now so sensibly felt. Another reason for the proposed examination, and which, he flattered himself, when the circumstances were recalled to their Lordships' minds, would have a proper weight with Administration, was the declaration of a noble Lord high in office, [Lord Gower,] who on the first day of the session, ingenuously owned he had been deceived, and attributed all the miscarriages of the last summer, and all the evils which now seem to be suspended over the head of this devoted country, to a want of full and genuine information. Such, then, being the case, as stated by one noble Lord, and confirmed by almost every one who spoke on the same side, and such being the evidence proposed this day to be given at your Lordships' bar, how is it possible that your Lordships can hesitate an instant on the choice, though experience had not taught you the necessity of such an inquiry? But when experience has taught you the fatal consequences of your former mistakes, how is it possible that your Lordships can refuse the aid of the lights now offered to be held out to you?

Earl Gower said it was unparliamentary and extremely improper to refer to any words spoken in a former debate, particularly on a different question. He was, however, glad of an opportunity of explaining a matter which had been industriously misrepresented without doors, as if his words had imported an actual designed deceit put upon him, with intent to mislead Administration. Nothing, he solemnly affirmed, was farther from his thoughts; when he said he had been deceived, he meant, that those on whose informations and reasonings Administration rested, had themselves been misinformed in point of fact; or, in reasoning on the fact so represented, had been mistaken in their conclusions. This was the utmost extent his saying he was deceived went to; and he would appeal to their Lordships, if there was anything more difficult than to reason on the state and disposition of a country. It was matter of opinion on either side, in which every man was more or less liable to err; when, therefore, he said he was deceived, he begged their Lordships to understand him in the sense he had now explained himself, and in no other. The noble Duke [of Grafton] had thrown out another insinuation directly contrary to the former, at least in consequence: that his Grace had asserted their Lordships had been made to decide on their mutilated and garbled accounts, which was, in fact, saying that Administration had intelligence, but purposely held it back. He would appeal to the candour and recollection of the noble Duke, if, on a former occasion, he did not himself condemn the impropriety of laying the information before the House, in the exact state it was received, when probably such a conduct would be productive of so many fatal consequences, no less than endangering the lives and properties of those, whether Englishmen or natives, who have, through this contest, been the professed and steady friends of this country. The word "garbled," therefore, as applied to the conduct of Administration, was, in his opinion, a very improper word. Garbled, according to its usual reception, meant an omission of everything which might inform their Lordships properly on the subject; and bringing forward only such parts of the information as would answer the particular purpose of those who had an interest in suppressing the real sense of the writer or informant. This he understood to be the true import of the word "garble;" a sense in which it was never more improperly applied; for Administration had all along

v6:121

laid every necessary information before their Lordships, and held back only that part which related to matters of mere private consideration, or where a disclosure of facts might endanger the safety or property of the persons concerned. On these general grounds, he was very unwilling that Mr˙ Penn should be examined; and upon none more than that his evidence might probably affect his own interests in America. It might create prejudices against him of a most fatal tendency. He was perfectly satisfied of the impartial, candid, disposition of that gentleman; yet, if it should appear that he had formed his opinion on the other side of the question, if any motion was to be made in consequence of those opinions, it would be necessary to call other evidence, before their Lordships could come to a determination; therefore, taking it in either light, he did not see what good purpose Mr˙ Penn' s examination could answer, or to what end it was ultimately directed.

The Duke of Richmond said, if the noble Earl meant seriously to go into the inquiry, and would pledge himself to the House that he would do so, he was very willing, on so important a consideration, to give up his motion for Mr˙ Penn' s examination, and rest on that assurance, that an inquiry would be set on foot, in order to come at that species of information so necessary to direct the progress of their future proceedings.

The Earl of Effingham observed, though the noble Duke had given up the point of order, he was perfectly satisfied that most, if not all, the witnesses examined relative to the Fishery Bill of last session were examined without any previous notice whatever being given.

Viscount Weymouth said, he never knew an instance where a witness was called suddenly to the bar, without previous notice; that it had been the established usage of Parliament to do so; and that a deviation from that rule now, would open a source of confusion in future, which it was the duty of every Lord in that House to do all in his power to prevent. But the main point, and that he would wish principally to press on their Lordships was, that if Mr˙ Penn was called to the bar and examined, it would have this effect, that after his evidence had been received, the noble Duke who called for the paper would probably frame some motion on the information then given, by which means, let that be what it might, the House would be led of course to come to some resolution, arising from what they had then heard. No man had a higher opinion of Mr˙ Penn' s impartiality than he had; but still, whatever he might impart to the House, either by way of information or otherwise, would be but the opinion and information of one man, who, however respectable, could not be supposed everyway competent to decide, so as to govern the determination of that House upon a subject of such great and singular importance. He would, therefore, submit it to the noble Duke, if it would not be more proper to withdraw his motion, and appoint some future day for the discussion of a subject of such magnitude, on which other persons conversant in the present situation of America might be ordered to attend, and be examined at the same time with Mr˙ Penn, so that the whole of the information might be received and judged of together.

The Duke of Richmond replied, that it was always understood, when any noble Lord moved for a paper, he had some motion, directed to some particular object, to propose. That, he said, was his intention on the present occasion; but as the noble Viscount who had spoken last had pressed the impropriety of resting entirely on Mr˙ Penn' s evidence, he was very willing to have that gentleman examined for the present, and to postpone his motion till the next day. This, he presumed, would completely obviate the noble Lord' s objection against coming to any sudden resolution, barely on the information now desired.

Viscount Townshend insisted, that it was impossible to admit Mr˙ Penn to be examined on any ground offered by the noble Duke. He assured their Lordships, though he objected to Mr˙ Penn' s examination, he did not mean to impute the smallest degree of partiality to that gentleman; is evidence, however, must be very improper, as laying a foundation to ground a motion upon; because, be his information ever so impartial and well selected, it would still be no more than the limited knowledge or particular opinions of a single individual.

The Duke of Grafton lamented, in the most pathetick

v6:122

terms, the fixed determination that had in the course of the, debate shown itself among the several members of Administration, to shut out every species of information, and to rush headlong on their own ruin, and (which was much worse) probably to hurry on the ruin and destruction of the nation. A noble Lord high in office [Lord Gower] seemed unwilling to consent to examine Mr˙ Penn, on the idea that it might affect his private interest, or that his evidence might affect persons now in America. He understood General Gage was daily expected home, and he presumed, if any information should be expected from him, the same apology would apply; his evidence might, nay, it must affect persons in America, for there the scene is laid, there the persons immediately concerned reside. What is this, but very plainly telling us that we are to have no information at all? For I will venture to contend, that if the present motion be rejected on the ground now urged, no motion of a similar nature, respecting the affairs of America, can possibly succeed. What is this, but giving us to understand that we must remain at the brink of that precipice, on which every true Englishman stands trembling, and waiting the instant in which the fate of his country shall be irrecoverably decided, and whither, I may add, he has been led blind-folded or compelled to grope his way? Are we, then, to trust to the same assurances by which one noble Lord was deceived, or shall we, like men who prefer the call of duty to every other consideration, endeavour to obtain lights in this business that have hitherto been denied us? For my part, though I have the misfortune to differ from the noble Lords in office, I am still open to conviction. I have been informed of some things, have heard a great deal, and have, according to the lights I have been able to obtain, formed an opinion; but I frankly declare, that on being better informed, I should gladly embrace the truth. I know no man better calculated to tell it us than the gentleman whose examination is now moved for; for, besides his known disposition to candour and impartiality, he has every possible inducement to reveal it, and not one single motive for suppressing or withholding it. Let me, therefore, entreat, nay, supplicate the noble Lords in Administration, to agree to the motion. On this point, surely there should not be a second opinion in this House. If your Lordships mean seriously, and will tell us fairly, that you have information to lay before the House, and will fix a time for submitting it to our consideration, I shall wait with pleasure, and rely in full confidence, on the faith of such an assurance. If, on the other hand, you tell us you have no information of your own, and that you are determined to reject all other, however important in its nature, at that instant I shall augur the worst, the most fatal consequences, from so unprecedented a mode of proceeding.

The Earl of Shelburne rose to rectify one or two trifling mistakes of the noble Duke who made the motion. He said that Mr˙ Penn was not of the religious profession his Grace seemed to allude to, nor was he proprietor of the Province of Pennsylvania; but he acted there in a character which, in every respect, fitted him to be one of the properest persons imaginable, not only to be publickly examined, but specially consulted. He acted there as Governour, by which he had the means of knowing the disposition of the people within his Government, and the strength of those who were for supporting the claims of the mother country, if any such there were. He must likewise know, in a great measure, the prevailing disposition of the whole American continent; as the place where the delegates and their followers chose to assemble was in the capital of that Province over which he presided. His Lordship entered shortly into the general reasons so often urged for examining Mr˙ Penn; and concluded with pressing on the noble Lords the propriety of acceding to the motion, or of promising to produce evidence on some future day. A refusal to so reasonable a request would, in his opinion, be fairly acknowledging that they were ultimately determined to withhold every species of information, and, consequently, to stifle every inquiry whatever.

The question being then put, it was resolved in the negative: Contents, 22; Non-Contents, 56.

The Duke of Richmond then moved, That the further consideration of the said Paper, intituled "Copy of the Petition of the Congress to the King," delivered to the Earl of Dartmouth by Messrs˙ Penn and Lee, on the 1st

v6:123

of September, 1775, be adjourned till to-morrow; and that Mr˙ Penn do then attend.

Lord Lyttelton thought the notice much too short. He said it would be a singular hardship on Mr˙ Penn, to be obliged to attend at their Lordships' bar, and to undergo a long examination, in the course of which a variety of questions might be propounded, difficult to answer, on many accounts, and in some extremely unpleasant and disagreeable. On this account, as well as wishing to give the gentleman time to arrange his ideas on so important a subject, he expressed a desire that the examination might be deferred till Wednesday or Friday sevennight.

The Duke of Richmond observed, that he imagined his Lordship' s solicitude might be spared. He believed Mr˙ Penn was fully prepared, nay, it might be fairly and reasonably presumed he was; as he must, from the nature of his office, connections, and situation, have frequently turned his thoughts to the subject. It was the general, the only topick of the country he had just left; in fine, it was uppermost in every man' s mind, almost on either side of the Atlantick, who reasoned or thought at all on subjects of such a nature.

Earl Gower pointed out the impropriety of examining Mr˙ Penn, either as his information might affect himself, or affect others. He said, the consequences of disclosing matters, in which several persons now in America were concerned, ought, to be proceeded on with all possible caution and circumspection.

The Earl of Dartmouth reasoned in the same manner; and proposed that Mr˙ Penn should be indulged with a privilege of refusing to answer any question which he should imagine might be injurious either to himself or to others. He likewise objected to the motion in point of time, and proposed an amendment to the purport of the amendment first suggested by him; but he framed no question on it.

Lord Camden condemned the noble Earl' s proposition for amendment, in strong terms. It was true, he said, that House was not tied up by the rigorous rules of proceedings in relation to evidence observed by the Courts in Westminster Hall; for though they were a court of law, they acted upon a more liberal plan. They excused on account of indisposition; they made great allowances in respect of their mode of examination; they pressed no gentlemen wantonly into disagreeable situations; they avoided, as much as possible, any explanations that might hurt the feelings of the witness. All those liberal modes of proceeding they had constantly adhered to. In the exercise of their judicature, they acted with a noble and indulgent liberality; but in so doing, they took care never to turn their backs on the eternal obligations they are always under of dispensing justice, as the first and most essential object of their duty; and their strict attention to such a conduct still became more necessary, according to the magnitude of the object in contemplation. What, then, is the purport of the noble Earl' s proposition? Why, that in a matter every way answering to the cases I have discriminated from ordinary occurrences, that in such a matter Mr˙ Penn shall be excused from answering only as much as he pleases. No, my Lords, I trust no such doctrine will ever prevail in this House. Though I have a high esteem for the gentleman whose name has been so often mentioned in this debate, I confess, if he were my dearest and most intimate friend I should positively reject any proposal for granting so unprecedented an indulgence, particularly on the present occasion, when so much may depend on his testimony; when, I may venture to add, his testimony may nearly affect the dearest and most important interests of this country.

The Earl of Denbigh moved an amendment to be made to the said motion, by leaving out the words "to-morrow," and instead thereof, inserting "Friday next."

The Earl of Shelburne was severe on the arguments used by the noble Lords in Administration, relative to concealing people' s names. He always suspected those who gave private information under a condition of secrecy. This species of secret-telling was generally founded in personal interest, or sinister views; for which reason, whenever secrets coming under this description were imparted to him, he never hesitated on the propriety of repeating them, unless absolute silence was enjoined. Such were the sort of persons, and such were the views he had strong reason to suspect, by which the noble Earl in office and the rest of his brethren

v6:124

had been deceived; and he was sorry to understand, by the whole of the doctrines and arguments urged in the course of the debate on the other side of the House, that such men are to be suffered to pursue their own interest, at the expense of the publick; and by being thus protected by promises of concealment, will, in the end, he feared, be permitted to escape with impunity.

The question was put, Whether the words "to-morrow" shall stand part of the said motion?

It was resolved in the negative.

The question was then put on inserting "Friday next," and it was resolved in the affirmative: Contents 52; Non-contents 21.

Ordered, That the further consideration of said Papper, intituled "Copy of the Petition of the Congress to the King," delivered to the Earl of Dartmouth by Messrs˙ Penn and Lee, on the 1st of September, 1775, be adjourned till Friday next; and that the Lords be summoned.

Ordered, That John Penn, Esq˙, do attend this House on Friday next.