bad been spent to little purpose: for, if their lordships would enter regularly upon the merits of this bill, they ought to be in a committee, where every lord would have an opportunity to speak as often as he thought fit. Notwithstanding this, the debate still continued, and The Lord Harcourt urged, That the parliament, which is the representative of the whole nation, were ever extreme jealous of the legislative power, with which they are vested; and that the Lords, in a particular manner, ought to be tender of it, because it is a branch of their prerogative to be the supreme court of judicature; but that by this bill, whereby the king was enabled to establish courts martial, with power to try and determine any offences speched in the Articles of War, the parliament rested a sole legislative power in the crown, which was communicated and delegated to a council of war: That this bill sets aside all other laws, both civil and ecclesiastical, in relation to the soldiery; and gives courts martial a larger jurisdiction than seemed necessary for maintaining discipline in the army, such jurisdiction extending not only to mutiny, desertion, and breach of duty, but also to all immoralities, and other offences, which might be committed any officer or soldier, towards any of his fellow subjects, whereby the law of the land might either be obstructed or superseded by a court martial: that the officers constituting a court martial did, at once, supply the place of judges and jurymen, and ought therefore to be apon their oath, upon their trying any offence whatsoever; whereas it is provided by this bill, that they shall be sworn upon their trying such offences only as are punishable by death. That martial courts assume to themselves an arbitrary and unprecedented authority, of which they had a fresh remarkable instance, an ensign of the guards having been sentenced to death without being heard, which was contrary to Magna Charta, and to the birth-rights and privileges of Englishmen; and therefore they ought to restrain so dangerous a power. The lord Harcourt was supported by lord Viscount Townshend, but was opposed by the lord Coningsby. by Lord Couper said, That he had maturely considered the affair now in agitation, not as a person in a public station, but as a private, unprejudiced man; and that he was convinced in judgment and conscience, that it is necessary both for the support of the present happy establishment, and the security of the nation, to keep up the forces now on foot: and that he was confirmed in this opinion, by considering what thoughts the Pretender and his friends had of this matter, and reflecting, that they have nothing more at heart, than to procure the disbanding of those forces that have suppressed the late unnatural Rebellion: that he doubted act but the whole nobility that made up that august assembly, was inviolably attached to his majesty king George; that his majesty had also the best part of the landed, and all the trading interest; that as to the Clergy, he would say nothing but that it was notorious, that the majority of the populace had been poisoned, and that the poison was not yet quite expelled: that the dangers which seemed to be apprehended from the present army, may be chimerical, or, at least, easily remedied in any subsequent session of parliament; whereas the dangers with which the nation is threatened from the Pretender and his friends, in case there were no army to oppose them, are real, and the mischiefs that might ensue, upon the success of their designs, irreparable: that if there had been such a standing force as we now havg, timely to suppress the Tumults and Riots which were raised soon after his majesty's ac cession to the throne, in all probability there had been no open rebellion; that, on the other hand, if there had not been troops ready at hand to assist the civil power, in suppressing the late riotous assemblies of the Wool-Combers and Weavers, in the counties of Devon and Somerset, there had, by this time, been another rebellion: That the mentioning Magna Charta was, in his opinion, entirely foreign to the present debate: that the thing now in question, and that wherein they were immediately concerned, was to secure and support the government and the Protestant Succession against vigilant, bold, and restless enemies: and that they had the more reason to be upon their guard, in that the trumpeters of sedition and rebellion had again forcibly intruded into several pulpits in Scotland. The Earl of Abingdon answered this Speech, and the lord Cadogan having spoken on the contrary side, the earl of Ilay, with great eloquence and solidity, supported the lord Trevor's motion, and endeavoured to shew, That a Standing Army in time of peace, would rather increase than lessen the enemies of the govern ment. The lord Carteret replied to him with great vivacity: after which the question was put upon the said motion, and carried in the negative, viz. Not Content Proxies 52 Content 15-91 Proxies 25-77 Protest on rejecting a Clause for providing. That no Punishment, by a Court Martial, shall extend to Life or Limb.] Hereupon the fol lowing Protest was entered. "Dissentient'. 1. "Because the exercise of martial law, in time of peace, with such power as is given by this bill, to inflict punishments extending to Life and Limb, was not in the first year of this reign, nor hath in any former reign been al lowed within this kingdom by consent of parliament, but hath, upon many attempts made to introduce such a power, been opposed and condemned by parliament, as repugnant to Magna Charta, and inconsistent with the fundamental rights and liberties of a free people. 2. "Because, after the Peace of Ryswick, and that of Utrecht, in the several reigns of king William and queen Anne, of glorious and ever blessed memories, no such power was given to any court-martial; and it is well known, that the forces then continued on foot were kept in exact discipline and order. ever an effectual provision hath not been made, to secure the obedience of the soldiers to the laws of their country, the military hath constantly subverted and swallowed up the civil power. W. Ebor', Willoughby de Broke, Bel ley, Mansell, Guildford, Joh. London, Scars dale, Dartmouth, Bathurst, Devonshire, Fr. Roffen', Fr. Cestriens', Masham, Lumley, Abingdon, Harcourt, Oxford, Greenwich, Rutland, Weston, Strafford, Tadcaster, North and Grey, Compton, Geo. Bristol, Deloraine, Townshend, Montjoy, Gower, Berkeley of Stratton, Northampton, Hay, Poulet, Trevor, P. Hereford." February 21. The Lords being in a grand committee, those who opposed the MatinyBill began with raising objections against the preamble of it, which suggests, "That the number of 16,347 men is necessary:" urging, They did not know from whence that necessity should arise, the kingdom being now in full peace, without any just apprehension, either of abroad; and thereupon it was moved, “That insurrections at home, or invasions from the said number of 16,347 men, be reduced to that lasted till about six in the evening, in 12,000." Hereupon, there was a great debate, Harcourt, earl of Abingdon, earl of Ilay, duke which the earl of Oxford, lord Trevor, lord of Buckingham, lord Bathurst, lord North and Grey, and the lord bishop of Hereford spoke against the bill; the earl of Sunderland, lord Parker, duke of Roxburgh, and lord Coningsby Stanhope, lord Cowper, lord Cadogan, lord 3. "Because it is not ascertained, either by this Bill, or by any other known law or rule, what words or facts amount to Mutiny or De-haven, Bute, Bristol, Castleton, Bingley, Fosertion, or to an exciting, causing or joining in mutiny; and consequently the judges in a court-martial have it in their power to declare what words or facts they think fit to be mutiny or desertion, and to take away the life of any officer or soldier, by such an arbitrary decision. 4. "Because, should death be thought the proper punishinent, in time of peace, for mutiny or desertion, or even for the least disobedience to any lawful command, yet, as we conceive, the nature of such offences ought first to have been ascertained by this bill, and the said offences being declared capital, the trial thereof ought to have been left to the ordinary course of law; in consequence whereof, the officers and soldiers would, upon such trials, have been intitled to all those valuable privileges which are the birth-right of every Briton; nor doth it appear to us, that any inconvenience could thereby have arisen to the public in time of peace, at least, not any such as can justify our depriving the soldiery of those legal rights, which belong to the meanest of their fellow subjects, and even to the vilest of malefactors. W. Ebor', Willoughby de Broke, Rutland, Masham, Harcourt, Bingley, Fr. Roffen, Greenwich, Abingdon, Castleton, Devonshire, Hay, Berkeley of Stratton, Geo. Bristol, Delo raine, Bristol, Lumley, Dartmouth, P. Hereford, Weston, Oxford, Northampton, Joh. London, Poulet, Scarsdale, Gower, Boyle, Compton, Belhaven, Tadcaster, Bute, Trevor, Foley, Mansell, Fr. Cestriens', Strafford, Townshend, Montjoy, Guildford, Bathurst, North and Grey." Protest against rejecting a Clause to secure the Obedience of the Officers, &c. to the Civil Magistrate.] Then a motion being made, and the question put, That it be an instruction to the said Committee of the whole House, that they do make an effectual provision to secure the Obedience both of the Officers and Soldiers, to be continued by this Bill, to the civil magistrate according to law, it was resolved in the negative, by 88 against 77, viz. Content 53 Not Content Proxies 24-77 Proxies 1. "Dissentient'. 73 "Because no provision whatsoever is made by this Bill, for securing the Obedience of the Military to the Civil Power, on which the preservation of our constitution depends. 2. "Because, we conceive, that a great number of armed men governed by MartialLaw, as they have it in their power, so are naturally inclined, not only to disobey, but to insuit the authority of the civil magistrate; and we are confirmed in this opinion, as well by the experience of what hath happened here at bome, as by the histories of all ages and nations from which it appears, that whereso for it. The Earl of Oxford endeavoured to shew, That the keeping up a standing army in time of peace was not the way to gain the hearts, but rather to increase the disaffection of the people; and that all good and wise princes had ever chosen to depend, rather on the affections of their subjects, than on a military force. This his lordship illustrated by several instances out of our English history, and, in particular, by the fresh examples of the late king William and queen Anne; adding, That none but bad and corrupt ministers have need ef troops to maintain their authority and unwarrantable proceedings. Lord Stanhope thereupon spoke in vindication of the present administration, and, from the posture of affairs, both at home and abroad, shewed the necessity of maintaining a greater force than in former times. It being suggested, on this occasion. That it was hoped no minister would advise the king to enter into a war, lord Stanhope readily replied, That he would be the first that should advise him to it, if he thought the honour of the crown concerned in it. Upon this The Lord Bathurst said, he was surprised to hear such an expression from a person in his lordship's station, whose principal care one would think, should be rather to discharge the great burthen which has been left upon the nation by the two last wars, than to involve it in a new one, which can hardly be maintained without making use of the funds, that have been appropriated for the payment of old debts. Lord Cadogan having represented, That if the army was reduced to 12,000 men, it were impossible upon any emergency, to assemble a body of 4,000 men in any part of Great Britain, besides London, without leaving the sea ports, and other important posts, unguarded. Lord Cowper took occasion to suggest, That they ought not to retrench the 4,000 men who were most necessary. Hereupon, the question being put, Whether the words 'sixteen thousand' should stand part of the clause of the preamble, it was resolved in the affirmative, by 72 voices against 50. After this it being moved, and the question put, That the House be now resumed, it was resolved in the negative, by 74 voices against 48; and then their lordships proceeded to the clause, whereby mutiny and desertion are made punishable by death; and the question being put, whether the words, death or', should stand part of the said clause; it was resolved in the affirmative without dividing. The next day the Lords went again into a grand Committee on the Mutiny Bill; and it was proposed, That in the clause, which obliges judges of a court martial to take au oath, when they try criminals for such crimes as may extend to death, to insert after death' the words or otherwise.' But the question being put whether these words should be added, it was carried in the negative, by 68 voices against 43. After this it was proposed to leave out the clause, which enables his majesty to constitute and settle Articles of War; and the question being put, whether that clause should stand part of the bill? It was resolved in the affirmative by 68 voices against SO. to endanger that to Spain and Italy; and to keep a standing army in full peace; but that time will shew whether three successive parliaments will approve these measures, as well as the peace which is called infamous. At the same time, his lordship animadverted on the late proclamation, for allowing the importation of Swedish iron from all places other than the dominions of the king of Sweden; which was, in effect, he said, no more than to appoint the Dutch to be our factors for Swedish iron. Towards seven in the evening, the House was resumed, and the earl of Clarendon reported, That the Committee had gone through the Bil! without amendment; upon which it was ordered, That the said Bill be read a third time on the 24th, and the Lords to be summoned. Protest against passing the Mutiny Bill.] read a third time, and the lord North and Grey Accordingly, on the 24th the said Bill was made a summary recapitulation of the objecput, That this Bill do pass, it was resolved in the tions raised against it; but the question being affirmative. "1. Because the number of 16,347 men is declared necessary by this bill: but it is not therein declared, nor are we able any way to satisfy ourselves, from whence that necessity should arise, the kingdom being now (God be praised) in full peace without any just apprehensions, either of insurrections at home, or invasions from abroad. "2. Because so numerous a force is near double to what hath ever been allowed within this kingdom, by authority of parliament, in times of public tranquillity; and being as we conceive, no ways necessary to support, nay, we fear endanger our constitution, which has never yet been entirely subverted but by a standing army. Lord Stanhope having suggested, That all the objections raised against this bill amounted to no more than bare suppositions of chimerical dangers; and defied any body to charge "3. Because the charge of keeping up so the administration with any thing that might great a force, ought not unnecessarily to be laid give just ground of apprehension for the liber- on the nation, already over-burthened with ties of the people: Adding, that if the govern-heavy debts; and this charge we conceive to ment be now obliged to keep a greater num ber of forces than formerly, it is partly owing to the situation in which the affairs of Europe bave been left by the late scandalous peace. The Earl of Strafford thereupon said, He could not be silent while a work in which he had so great a share was so openly attacked; but that the peace which some are pleased to call scandalous, was approved by three successive parliaments, and, in particular, by some peers now in place: that he would venture to affirm, that this very peace had left the affairs of Europe in a better posture than they seem to be in at present, at least with res pect to Great Britain; that notwithstanding the great advantages which some boast to have obtained by the late treaties, they have yet found the way to lose our trade to Sweden: VOL. VII. be still more unnecessarily increased, by the great number of officers now kept on the establishment in time of peace; a number far greater (in proportion to that of the soldiers commanded by them) than hath ever yet been thought requisite in times of actual war. "4. Because such a number of soldiers, dispersed in quarters throughout the kingdom, may occasion great hardships, and become very grievous to the people; and thereby cause or increase their disaffection, and will, probably, ruin many of his majesty's good subjects on whom they shall be quartered, and who have been already by that means greatly impove rished. "5. Because such a standing army, dangerous in itself to a free people in time of peace, is, in our opinion, rendered yet more dangerous, 2N by their being made subject to Martial Law; | a law unknown to our constitution, destructive of our liberties, not endured by our ancestors, and never mentioned in any of our statutes but in order to condemn it. "6. Because the officers and soldiers themselves, thus subjected to martial law, are thereby, upon their trials, divested of all those rights and privileges which render the people of this realm the envy of all other nations, and become liable to such hardships and punishments as the lenity and mercy of our known laws utterly disallow; and we cannot but think those persous best prepared, and most easily tempted to strip others of their rights, who have already lost their owil. "7. Because a much larger jurisdiction is given to courts-martial, by this Bill, than, to us, seems necessary for maintaining discipline in the army, such jurisdiction extending not only to mutiny, desertion, breach of duty and disobedience to military commands, but also to all immoralities, and every instance of misbehaviour, which may be committed by any officer or soldier towards any of his fellow-subjects; by which means the law of the land, in cases proper to be judged by that alone, may, by the Summary method of proceedings in courts-martial, be obstructed or superseded, and many grievous offences may remain unpunished. "8. Because the officers constituting a courtmartial, do at once supply the place of judges and jury-men, and ought therefore, as we conceive, to be sworn upon their trying any offence whatsoever; and yet it is provided by this Bill, that such officers shall be sworn upon their trying such offences only as are punishable by death; which provision we apprehend to be defective and unwarrantable by any precedent, there being no instance within our knowledge, wherein the judges of any court, having cognizance of capital and lesser crinies, are under the obligation of an oath in respect of the one, and not of the other. "9. Because the Articles of War thought necessary to secure the discipline of the army, in cases unprovided for by this bill, ought, in our opinion, to have been inserted therein, in like manner, as the Articles and Orders for regulating and governing the navy were enacted in the 13th year of king Charles the 2nd, to the end, that due consideration might have been had by parliament of the duty enjoined by each article to the soldiers, and of the measure of their punishment; whereas the sauction of parliament is now given by this Bill to what they have had no opportunity to consider. "10. Because the clause in this Bill enabling his majesty to establish Articles of War, and erect Courts-martial, with power to try and determine any offences to be specified in such Articles and to inflict punishments for the same, within this kingdom in time of peace, doth (as we conceive) in all those instances, vest a sole legislative power in the crown; which power, how safely soever it may be lodged with his present majesty, and how tenderly soever it may be exercised by him, may yet prove of danger ous consequence, should it be drawn into precedent in future reigns. "11. Because the clause in the Bill, alledged to be made for enabling honest creditors to recover their just debts from soldiers, seems to us rather to give a protection to the soldier than any real advantage to his creditor, or other person having just cause of action against him; it protects the person of a soldier from execu tion, as well as the Mesne process, for any debt under 107.; and it protects the estate and effects as well as the person of every soldier from all other suits but for debt, where the cause of action doth not amount to the like sum; and in other cases, where the cause of action exceeds that value, plaintiffs are in many instances put under such unreasonable difficulties, that, we conceive, before they can be allowed even to commence their suit, their bare compliance therewith may become more grievous to them than the loss of their debt, or a quiet submis sion to the wrong sustained; by which means his majesty's good subjects may be highly in jured in their properties, and insulted in their persons by the soldiery, and yet be deprived of the legal remedies appointed for the redress of such grievances. "W. Ebor', Compton, Dartmouth, Hay, Strafford, Boyle, Guilford, Greenwich, Weston, Tre vor, Fran. Cestriens', Bute, Tadcaster, Bingley, Scarsdale, 'Litchfield, Foley, Mansell, Fr. Roffen', Abingdon, Bristol, North and Grey, Harcourt, Bathurst, Gower, Poulet, Northampton, P. Hereford, Montjoy, Oxford"." Feb. 27. The Commons proceeded to take in Debate on the State of the Trade to Sweden.] several merchants and owners of shipping, and to consideration the matters of the Petition of other petitions which had been presented to the House, in relation to the Trade to and from : Sweden and the extracts of the Letters be tween the Secretaries of State, and his majes "No subject produced so much heat and altercation in parliament during this session, as did the bill for regulating the land forces, and punishing mutiny and desertion: a bill which was looked upon as an encroachment upon the liberties and constitution of England, inasmuch as it established martial law, which wrested from the civil magistrate the cognizance of crimes and misdemeanors committed by the soldiers and officers of the army: a jurisdiction inconsistent with the genius and disposition of the people. The bill passed by a great majori ty; but divers lords entered a protest."Smollett. "As soon as the parliament broke up, the Speakers against the Mutiny-Bill published their speeches, for which they were severely censured by the author of The Critic, and thei speeches boldly examined. The king also, soun after the end of the session, ordered Articles to be published for the Regulation and Govern ment of the Army, pursuant to the power lodged in him by the act."-Tindal. : ty's residents in Holland; and also the Memorials which Mr. Jackson presented to the Regency of Sweden, and the Answers to them, were read: after which Mr. Jackson being called in, Mr. Craggs asked him, whether he was of opinion, That if the trade were opened with Sweden, our merchants would be upon a better foot than they are at present? Mr. Jackson answered, "That, in his opinion, the contrary would happen for now that the Swedes are distressed for want of our commodities, particularly corn and salt, they are inclined to facilitate to us, underhand, the purchase of their iron; whereas if the prohibition of trade with them was taken off, they would immediately provide themselves with what they want; and knowing at the same time, that there are amongst us a set of men, who make it their study and business to embarrass the government, the court of Sweden would be more stiff than ever, and render the purchase of their iron more difficult to us." 46 Some members being offended at Mr. Jackson's expression, viz." A set of men," cried out, Custody, Custody." But the more moderate contented themselves with putting him upon explaining himself: hereupon, Mr. Jackson replied, "That he meant the Merchants who presented unreasonable petitions." This being by some looked upon rather as an aggravation than an excuse, the cry of" Custody, Custody," was repeated; but | had desired his majesty to prohibit all com- After this it was resolved by a majority of 201 votes against 111, to adjourn the debate till that day month. Debate in the Lords on the Forfeited Estates' Bill.] March 4. The Lords read the first time, the Bill for vesting the Forfeited Estates, in Great Britain and Ireland, in trustecs, to be sold for the Use of the public; and a motion being made, and the question put, That the said Bill be read a second time. The lord North and Grey spoke against the excessive power, which, by this Bill was given to the trustees, whereby Mr. R. Walpole brought him off, by suggest- abundance of families might be oppressed and ing, "That that gentleman had lived so long in ruined; and his lordship was seconded by the a despotic government, where Petitions and lords Trevor and Harcourt, and the duke of Representations of that nature, are accounted Argyle, who urged, That this Bill by leaving capital crimes, that he had forgot the rights and the claims to the Forfeited Estates to the final privileges of his countrymen;" and therefore determination of the trustees, not only clashed moved, that his unguarded expressions might be with the Act of Union, in that it suspended excused. Nobody opposing Mr. Walpole, Mr. and set aside, in that respect, the courts of Jackson withdrew. Then the Petitioners, and judicature in North Britain, which, by the some other merchants being called in, and far- said Act, ought to remain entire; but was ther heard, they represented among other par- likewise derogatory to the privileges and auticulars, "That since the prohibition of trade thority of the House of Peers, who are suwith Sweden, they bought Swedish iron of the preine judges in all civil causes. It was also Dutch 41. per ton dearer than before; and that alledged, That by the method that had been whereas the English were formerly, about followed, the public would get little or no50,000l. per annum, gainers by the trade with thing by the forfeitures; whereas, if the scheme Sweden, they now lost about 90,000l." But proposed by sir David Dalrymple had been this was contradicted by Mr. Craggs, who sug- pursued, the same would have yielded considergested, "That the exports from Stockholm for able sums, without any oppression to the subEngland had never amounted to 120,000l. inject. The earl of Sunderland, the lords Stanone year; and therefore the difference of the profit and loss could not come up to this last sum." The merchants being withdrawn, Mr. Heysham spoke in their favour, and made a motion, upon which the question was proposed, That an Address be presented to his majesty, to take into his consideration the State of the Trade with Sweden, and that such measures might be taken, that his majesty's subjects, and those of his allies, might carry on the said trade in the same manner. Hereupon there arose a warm debate, in which Mr. Craggs represented, That such an address would be derogatory to the king's honour, and even a reflection on the parliament, who hope, Parker, and Coningsby, answered the objections raised against the bill; and it was, at last, resolved, That the same should be read a second time; and that a Message be sent to the Commons, to acquaint them, "That their lordships, having under their consideration the Bill for vesting the Forfeited Estates of Great Britain and Ireland, in trustees, to be sold for the use of the public, they did desire that the Commons would give leave, that such of the commissioners of enquiry, who were members of that House, as also sir David Dalrymple, his majesty's advocate-general of Scotland, might attend their lordships' House, on Thursday morning next." |