The Works of Samuel Johnson, LL.D. Volume 11
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 NAVIGATIONThe 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.