The History and Proceedings of the House of Commons: Volume 10, 1737-1739. Originally published by Chandler, London, 1742.
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Petition of the West-India Merchants.
Feb. 23. There was presented to the House a Petition of divers Merchants, Planters, and others trading to and interested in the British Plantations in America, in behalf of themselves and many others, and read; shewing that the Petitioners made their most humble Application to this House the last Session of Parliament, setting forth the continued Depredations committed by the Spaniards on the high Seas of America upon the British Shipping and Property, their barbarous and inhuman Treatment of the British Sailors on the taking of their Ships, and their carrying them afterwards into Slavery in Old Spain, (the Spaniards making it their constant Practice to attack and board all British Merchant Ships they met with in the American Seas, under Pretence of searching for Goods, which they deemed contraband, according to their arbitrary Will and Pleasure contrary to the Law of Nations, and in manifest Violation of the Treaties subsisting between the two Crowns,) and that by those unjust and violent Proceedings of the Spaniards, the Trade and Navigation to and from America was rendered very unsafe and precarious, insomuch that the Insurances had greatly risen on these Accounts only; and that the Petitioners having been heard by their Counsel before a Committee of the whole House, did, as they apprehend, fully make out in Proofs every one of the Allegations of their said Petition, to the intire and unanimous Satisfaction of the House, upon which Application this House came to the following Resolutions:
'That it is the natural and undoubted Right of the British Subjects to fail with their Ships on any Part of the Seas of America to and from any Part of his Majesty's Dominions, and that the Freedom of Navigation and Commerce which the Subjects of Great Britain have an undoubted Right to by the Law of Nations, and by Virtue of the Treaties subsisting between the two Crowns of Great Britain and Spain, has been greatly interrupted by the Spaniards under Pretences altogether groundless and unwarrantable; that before and since the Execution of the Treaty of Seville, and the Declaration made by the Crown of Spain pursuant thereunto, for the Satisfaction and Security of the Commerce of Great Britain, many unjust Seizures and Captures have been made, and great Depredations committed by the Spaniards, attended with many Instances of unheard-of Cruelty and Barbarity; that the frequent Applications made to the Court of Spain for procuring Justice and Satisfaction to his Majesty's injured Subjects, for bringing the Offenders to condign Punishment, and for preventing the like Abuses for the future, have proved vain and ineffectual, and the several Orders or Cedulas granted by the King of Spain for Restitution and Reparation of great Losses sustained by the unlawful and unjustifiable Seizures and Captures made by the Spaniards, have been disobeyed by the Spanish Governors, or totally evaded or eluded; all which Violences and Depredations have been carried on to the great Loss and Damage of the Subjects of Great Britain trading to America, and in direct Violation of the Treaties subsisting between the two Crowns.
'That an humble Address be presented to his Majesty, humbly beseeching his Majesty to use his Royal Endeavours with his Catholick Majesty to obtain effectual Relief for his injured Subjects, and to convince the Court of Spain, that how desirous soever his Majesty may be to preserve a good Correspondence and Amity between the two Crowns, (which can only subsist by a strict Observance of their mutual Treaties, and a just Regard to the Rights and Privileges belonging to each other) his Majesty can no longer suffer such constant and repeated Insults and Injuries to be carried on, to the Dishonour of his Crown, and to the Ruin of his trading Subjects; and to assure his Majesty, that in case his royal and friendly Instances for procuring Justice, and for the future Security of that Navigation and Commerce, which his People have an undoubted Right to by Treaties and the Law of Nations, shall not be able to procure from the Equity and Friendship of the King of Spain such Satisfaction as his Majesty may reasonably expect from a good and faithful Ally; this House will effectually support his Majesty in taking such Measures as Honour and Justice shall make it necessary for his Majesty to pursue.'
That a Convention hath since been entered into between this Crown and that of Spain, which his Majesty has been most graciously pleased to order to be laid before this House; and the same being published by Authority, the Petitioners observe with the utmost Concern, that the Spaniards are so far from giving up their groundless and unjustifiable, Practice of visiting and searching British Ships sailing to and from the British Plantations, that they appear to have claimed the Power of doing it as a Right, by having insisted that the Differences which have arisen concerning it should be referred to Plenipotentiaries, to be discussed by them, without even agreeing to abstain from such Visitation and Search during the Time that the Discussion of this Affair may last; that the Petitioners are under the greatest Apprehensions, since Spain has contended, that a Point so incontestably clear both by the Law of Nations and all the Treaties subsisting between the two Crowns, should come under Debate, that the Spanish Plenipotentiaries will be instructed not to give it up; and if the Freedom of our Navigation to and from our own Colonies should be left in Suspence, and precarious, it must be attended with the most fatal and pernicious Consequences to the Petitioners, whose Persons and Fortunes will thereby be in the Power of the Spanish Guarda Costas, without any Prospect of Relief, the Petitioners having already too severely experienced the Justice of the Spanish Courts and Governors, to consider them as any Security; and therefore praying, that the Petitioners may have an Opportunity of being heard, and that they may be allowed to represent to this House the great Importance of our Trade to and from our own Plantations in America, the clear and indisputable Right which we have to enjoy it, without being stopped, visited, or searched by the Spaniards on any Pretence whatsoever, and the certain and inevitable Destruction of all the Riches and Strength derived to this Kingdom from that Trade, if a Search of British Ships sailing to and from the British Plantations be tolerated upon any Pretext, or under any Restrictions, or even if the Freedom of this Navigation should continue much longer in this State of Incertainty.
Referr'd to a Committee.
This Petition was ordered to be referred to the Consideration of the Committee, who were to consider of the Convention; and that the Petitioners, if they thought fit, might be heard upon their Petition, by themselves, before the said Committee.
Petition from the City of London.
At the same Time the Sheriffs of the City of London presented to the House a Petition of the Lord-Mayor, Aldermen, and Commons of the City of London, in CommonCouncil assembled; which Petition being brought up and read, set forth, That the Citizens of London are too deeply interested in whatever affects the Trade of this Nation, not to express the utmost Anxiety for the Welfare of that only Source of our Riches; and it is with a Concern the Petitioners are unable to express, that they perceive the Trade to his Majesty's American Colonies still continues exposed to the Insults of the Spaniards, who under unwarrantable and injurious Pretences continue to stop, search, and make Prizes of British Vessels navigating the American Seas, in manifest Violation of the Treaties subsisting between the two Crowns; and that the Petitioners apprehend that the Trade from these his Majesty's Kingdoms to his American Colonies is of the utmost Importance, and almost the only profitable Trade this Nation now enjoys unrivall'd by others; and that the Petitioners were induced to hope, from his Majesty's known Goodness and paternal Care of his Subjects, supported by the vigorous Resolutions of both Houses of Parliament, and the Equipment of a very powerful Fleet, that his Majesty's trading Subjects in the Seas of America, as well as in all other Parts of the Ocean, would not only have received a full Satisfaction for their Losses occasioned by the Depredations of Spain, but also an undoubted Security for their Commerce for the Time to come; and that a reasonable and adequate Reparation would likewise have been obtained for the Barbarities and inhuman Cruelties exercised by that Nation on the English Seamen who have had the Unhappiness of falling into their merciless Hands; and expressing their great Concern and Surprize to find by the Convention lately concluded between his Majesty and the King of Spain, that the Spaniards are so far from giving up their, as the Petitioners apprehend, unjust Pretensions of a Right to visit and search our Ships in the Seas of America, that this Pretension of theirs is among others referred to the future Regulation and Decision of Plenipotentiaries appointed on each Side, whereby the Petitioners apprehend it is in some Degree admitted; and that the Petitioners conceive they have too much Cause to fear, if the Right pretended to by Spain of searching British Ships at Sea be admitted in any Degree whatsoever, that the Trade of his Majesty's Subjects to America will become so precarious, as to depend in a great Measure upon the Indulgence and Justice of the Spaniards, of both which they have given, for some Years past, such Specimens, as the Petitioners think this Nation can have no Cause to be satisfied with; and expressing the Apprehensions of the Petitioners, that such a precarious Situation as this is, must inevitably expose the Trade to the American Seas, to continual Interruptions and Alarms, as well as several Losses; and that to these unhappy Causes, the Petitioners apprehend the present low State of the British Colonies in America may in a great Measure be attributed; and if the cruel Treatment of the English Sailors, whose hard Fate has thrown them into the Hands of the Spaniards, should be put up without any Reparation, the Petitioners apprehend it may be the Means of deterring Seamen from undertaking Voyages to the Seas of America, without an Advance of Wages which that Trade, or any other, will not be able to support; and that the Petitioners therefore having laid before this House the high Importance this Trade is of to the Kingdom in general, and this City in particular, thought it their indispensable Duty to represent to this House the fatal Consequences of leaving the Freedom of Navigation any longer in Suspence and Uncertainty; and therefore expressing their Hope, that this House will take it into mature Deliberation, and do therein as to the House shall seem meet.
Referr'd to the same Committee. ; Petition from the British Merchants. ; Referr'd to the Committee.
Which Petition was referred to the same Committee.
Likewise at the same Time a Petition of the Master, Wardens, Assistants, and Commonalty of the Society of Merchants Adventures within the City of Bristol, under their common Seal, was presented to the House, and read: Which Petition being the same in Substance as that of the West India Merchants just recited, was referred to the same Committee; and it was ordered, that the Petitioners, if they thought fit, might be heard upon their Petition by themselves, before the said Committee.
Petition of Copethorn and the Owners of the Betty Gally.
And also at the same Time, a Petition of the several Persons whose Names were thereunto subscribed, Owners and Freighters of two British Ships taken by the Subjects of his Catholick Majesty, after the signing of the preliminary Articles of Peace by the two contending Powers, Great Britain and Spain, in behalf of themselves and the rest of the Sufferers, was presented to the House and read; setting forth, that one of the aforesaid Ships, called the Betty Gally, commanded by Richard Copithorne, was taken on the 29th of June 1727, N. S. in the Mediterranean-Sea, on her Voyage from Messina, by a Spanish Privateer under Turkish Colours, after five Hours Engagement, wherein three of his Men were killed, the Petitioner Richard Copithorne and three more wounded, and for nine Days kept naked; and after other inhuman Usage, the said Ship was carried into Malaga, and on the 14th of October following was there condemned; and that the other Ship, called the Loyal Gally, commanded by William Pugsley, was also taken on the said 29th of June 1727, N. S. in the same Seas, on her Voyage from Leghorn, by another Privateer, and carried into Malaga, and on the 14th of October following was also condemned; and that the preliminary Articles were signed at Paris the 31st of May 1727, N. S. which was twenty-nine Days before the said Ships were taken; and upon the 19th of June 1727, his Catholick Majesty accepted and signed the said Preliminaries; and upon the 23d following all Hostilities ceased at Gibraltar and the Camp of St. Roche; and upon the 26th of the same Month, the Cessation of Arms was published on board the British Fleet, and also at the same Day at Malaga; and that the Petitioners apprehend they are entitled to Satisfaction, as being expresly provided for by the 5th and 7th Articles of the Preliminaries in the following Words:— Article the 5th, 'Immediately after the signing of the present Article, all Hostilities whatsoever, if any have happened to be begun, shall cease; and, with respect to Spain, within eight Days after his Catholick Majesty shall have received the signed Articles.'— Article the 7th, 'If after the signing of these Preliminaries, any Disturbances should happen to be raised, under any Pretext whatsoever, or Acts of Hostilities committed between the Subjects of the contracting Powers, either in Europe or in the Indies, they shall by joint Assistance repair the Damages sustained by their respective Subjects.'— And that frequent Applications have been made in the most respectful Manner by the Petitioners, who have hitherto received no Satisfaction, although they have given in their respective Claims upon Oath, conformable to the Method prescribed for that Purpose in the London Gazette of the 9th of April 1730; and that the Petitioners fear they are excluded from any Satisfaction by the present Convention, they having lately been informed by a Message from one of the Commissaries, that the King of Spain would not allow of any Claims to be good, but for such Ships only as were taken in Europe after the 2d of July 1727, N. S. and therefore praying the House to take the Hardships the Petitioners labour under into Consideration, that they may have such Assistance and Relief as the Case requires, and as to the House shall seem meet.
Referr'd to the said Committee.
This Petition was likewise referred to the same Committee.
Petition from the Merchants of Liverpool.
On the 26th a Petition of the Merchants trading from the Port of Liverpool to his Majesty's Plantations in America, on behalf of themselves and many others concerned in that Trade, was presented to the House, and read; setting forth the same in Purport and Manner as that of the West-India Merchants.
Petition of the Owners of the Ship Sarah.
Likewise a Petition of George Packer, Richard Farr, Thomas Ross, and Thomas Roach, of the City of Bristol, (Owners of the Ship Sarah, Jason Vaughan Master) in behalf of themselves and others interested in the said Ship, her Cargo and Frieght, was presented to the House and read; setting forth, That on the first Day of June, in the Year 1738, the said Ship sailed fully laden from the Island of Jamaica, directly for the Port of Bristol, but, after attempting the Windward Passage for about seventeen Days without Success, was obliged to return and make her Voyage through the Gulf of Florida; and on the 29th Day of the same Month, in the Latitude of twenty-four Degrees and twenty-eight Minutes, as the said Ship was proceeding on such her Voyage, and being then about fifty-five Leagues distant from the West End of the Isle of Cuba, she was with her whole Cargo seized by a Spanish Man of War, and carried into the Havanna, there condemned as a Prize, contrary, as the Petitioners presume, to the Law of Nations and the subsisting Treaties; the Value of which said Ship and Cargo, at the Time of such Seizure, as the Petitioners are advised, was nine thousand Pounds Sterling and upwards; and that the Master and Mariners of the same Ship were imprisoned, and otherwise most inhumanly treated by the Captors, and carried by them into Old Spain, where the said Master yet continues a Prisoner; and therefore praying the House to take the Premisses into Consideration, hear the Petitioners by themselves or Counsel, and grant such Relief thereupon, as to the House shall seem meet.
Petition of the Trustees for Georgia.
And also a Petition of the Trustees for establishing the Colony of Georgia in America, was presented to the House and read; setting forth, that his Majesty, by his Royal Charter bearing Date the 9th of June 1732, granted to the Petitioners and their Successors for-ever, seven undivided Parts of all those Lands, Countries, and Territories in that Part of South-Carolina in America, which lies from the most Northern Stream of the Savannah River, all along the Sea-Coast to the Southward, unto the most Southern Stream of the Alatamaha River, and Westward from the Heads of the said Rivers in direct Lines to the South-Seas, with the Islands in the Sea lying opposite to the Eastern Coast of the said Lands, within twenty Leagues of the same; all which his Majesty thereby made, erected, and created one independant and separate Province, by the Name of Georgia; that John Lord Carteret (the Proprietor of the other undivided eighth Part of the said Lands, Countries, and Territories, which his Majesty granted to the Petitioners) by Indenture bearing Date the 28th Day of February 1732, granted and released all his Right and Property in the undivided eighth Part of Georgia, in the same Manner, to the Petitioners and their Successors for-ever; and that the Province of Georgia was granted to the Petitioners in Trust for settling and establishing a regular Colony in the Southern Frontiers of Carolina, and not for any Benefit or Profit whatsoever to the Petitioners; and that by divers' Sums of Money granted by Parliament for this Purpose, and by voluntary Contributions, the Petitioners have been enabled to send at several Times poor British Subjects, and Foreign persecuted and other Protestants, to settle in Georgia, who, as well as others that went thither at their own Expence, have erected Houses and cultivated Lands in several Parts of the Province, and particularly in the Northern and Southern Parts thereof; and whereas in a Letter from Monsieur Geraldino (then Agent for the King of Spain) to his Grace the Duke of Newcastle, bearing Date the 21st of September 1736, (a Copy whereof was sent to the Petitioners by the Command of her late Majesty when Guardian of the Kingdom, for the Petitioners Answer thereto) it is asserted, that the Colony of Georgia, being to the Southward of the Colony of Carolina, is without Dispute on the Territories of the King his Master; and whereas by a Convention between Great Britain and Spain concluded at the Pardo the 14th of January last, N. S. it is agreed, that the Regulation of the Limits of Florida and Carolina should be committed to Plenipotentiaries to confer and finally regulate the respective Pretensions of the two Crowns, according to the Treaties therein mentioned; that therefore the Petitioners, in Discharge of that great Trust, which his Majesty has been graciously pleased to repose in them, and being fully satisfied of the undoubted Right and Title of the Crown of Great Britain to the said Province of Georgia, think it their indispensable Duty to lay this State of their Case before this House, and to implore their Protection in behalf of this Part of the Dominions of the Crown of Great-Britain in America, intrusted to the Care of the Petitioners; and also in behalf of his Majesty's Subjects in Georgia, for whose Safety and Welfare the Petitioners are deeply concerned.
Debate upon hearing the Petitioners Counsel.
Some Doubt arising in the House whether the Merchants should be heard by their Counsel, Mr. Alderman Perry spoke to the following Effect.
'From the Number of Petitions that are now ready, or preparing to be presented to us, against our late Convention with Spain; from the Rank and Character of the several Petitioners; and from the Allegations set forth in the Petition that is now before us; we have great Reason, I think, to conclude, that our Convention is far from being such a one as it ought to be. From the great and considerable Bodies of Merchants that have petitioned, or are preparing to petition against it, and from our seeing not so much as one Petition in its Favour, we must conclude, that the whole Body of our Merchants think it a most dishonourable, disadvantageous, and dangerous Treaty. On the other hand, Sir, we ought in Charity to believe, that our Ministers who negotiated this Convention, and our Ministers who advised his Majesty to ratify it, thought it either a good one, or at least, the best that our present Circumstances would permit us to insist on. Therefore, when this Convention comes to be examined in this House, we ought to consider ourselves as Judges in an Affair in which the whole Body of our Merchants, Planters, and Sailors are Plaintiffs, and our Ministers and Negotiators Defendants; and in an Affair of such Importance, an Affair in which the Parties concerned are of so great Consequence, surely it will be allowed, that it behoves us not only to have the best Information both as to Matters of Right and Matters of Fact, but also to have all the Proofs and Arguments that can be brought upon either Side of the Question, stated and laid before us in the most methodical, the fullest, and the clearest Light.
'For this Reason, Sir, it is, I think, absolutely necessary for us, not only to refer this Petition to the Committee who are to consider of the Convention, which I am confident no Gentleman will oppose; but I likewise think it absolutely necessary to allow the Petitioners to be heard before that Committee, either by themselves or Counsel, with regard to this Convention, which they so heavily, and, I am afraid, so reasonably complain of; and, if our Ministers and Negotiators have a Mind to justify their Proceedings, they may move, or get one to move for them, that Counsel may at the same Time be heard in favour of this Child of theirs, which, like other monstrous Births, is in some Danger of being smothered upon its first Appearance in the World. As I have no intimate Correspondence with them, nor with any one of them, I cannot pretend to guess at what they may in this Case resolve on; but, as I have always had a good Correspondence with our Merchants and Planters, I may venture to say, that such of them as are now Supplicants at our Bar, will be glad of being admitted to be heard by their Counsel upon this Occasion; and will be far from grudging any Expence, that may be necessary for giving us a full and clear View of the important Affair that is soon to come before us: Therefore I shall conclude what I am to say upon the present Occasion, with a Motion to this Effect, That the Petition now presented to us be referred to the Consideration of the Committee of the whole House, who are to consider of the Convention between Great-Britain and Spain, concluded at the Pardo, Jan. 14, 1739, N. S. and the separate Articles belonging thereunto, with the several Ratifications thereof; and, that the Petitioners, if they think fit, be heard upon their Petition, either by themselves or Counsel, before the said Committee.
'This, Sir, I take to be so reasonable a Proposition, that I hope no Gentleman will oppose it. However, before I make my Motion, I shall beg leave to observe, that in all Trials at Law, even in criminal Trials, where by the common Method of Proceeding Counsel are not admitted to be heard, wherever a Point of Law comes to be disputed, Counsel are always admitted to speak to such Points for the better Information of the Judges; and yet, I hope, I may be allowed to presume, that our Judges, especially of late Years, are as much Masters of the Laws of their Country, as the several Members of this House can be supposed to be of the Law of Nations, and of the several Rights and Privileges which are founded upon that Law, or upon the particular Treaties now subsisting between us and Spain. Therefore, when any such Right or Privilege comes to be disputed before us, there is at least as great a Necessity for admitting Counsel to be heard upon such Points for our Information, as there can be for admitting Counsel to be heard upon any Point of Law for the Information of our Judges.
'If we attend, Sir, to the Petition now upon our Table, we shall from thence see, that when the Convention comes to be taken into Consideration, there are several Matters of Right that must be enquired into, and some of them may, perhaps, be disputed even by some Gentlemen in this House. We know that the Spaniards have lately pretended to a Right to visit and search British Ships, sailing to and from the British Plantations: This is a Right which I believe no Gentleman in this House will pretend to justify; however, as the Spaniards do pretend to justify it, or at least have exercised it, it is a Point of Right which ought to be fully enquired into, before we can judge of the Convention. But there is another Point of Right or Law that will, I believe, be disputed even in this House, and that is, Whether this Right of Visiting and Searching our Ships in the open Seas, which the Spaniards lay Claim to, is not in some Degree admitted by us, by our agreeing to refer this Pretension of theirs to the future Regulation of Plenipotentiaries? For if there is the least Ground even for the Spaniards to alledge, that we have by such Reference in any Degree admitted of this Pretension, surely every. Gentleman who has a Regard for the Honour and Happiness of his Country, will condemn a Treaty which gives the Spaniards any Ground to say so. And whether they may not from this Treaty have, or pretend to have some Ground for saying so, is a Point of Right which the Petitioners seem to apprehend, and which several Gentlemen in this House, as well as I, think we have Reason to apprehend, though our Apprehensions will certainly be said to be groundless, by all those who are Favourers of the Convention. But as this is a Point which will, and must be judged of by Foreigners as well as by us, we ought to have it fully argued, before we pass any Judgment upon it.
'As this Point in particular, Sir, depends upon the Law of Nations, and upon the Construction that is usually put upon preliminary Articles or Conventions, we cannot suppose that the Petitioners are capable of giving us any Light into this Affair; and therefore, if it were but for the Sake of this Point only, we ought to allow them to be heard by their Counsel upon this Occasion. There may be other Points of Right, which ought to be enquired into: I believe there are several others which we ought to insist on, as the undoubted Rights and Privileges of this Nation; and yet the general Reference contained in this Convention, may hereafter give Spain a Pretence to say, that even we ourselves admitted them to be such as were disputable. For this Reason, Sir, before we pass any Judgment in an Affair of so great Consequence to the Honour, Trade, and Navigation of this Kingdom, we ought strictly to examine into the Import and Meaning of those Words in the first Article, by which it is agreed, 'That the Plenipotentiaries respectively named by their Britannick and Catholick Majesties shall confer, and finally regulate the respective Pretensions of the two Crowns, as well with relation to the Trade and Navigation in America and Europe, and to the Limits of Florida and of Carolina, as concerning other Points which remain likewise to be adjusted.' I say, Sir, we ought strictly to examine into the Import and Meaning of this unlimited Reference, before we pass any Judgment; and as the Import and Meaning of these Words must intirely depend upon the Law of Nations, and the Nature of preliminary Conventions, we cannot expect full Satisfaction as to this Point from the Petitioners; we can no way expect full Satisfaction, but by hearing learned Gentlemen argue upon it, who have made such Points their particular Study.
'I believe, Sir, it will be admitted by every Gentleman, both within Doors and without, that a definitive Treaty, containing a full and express Acknowledgment of all our Rights and Privileges, would have been much better than this preliminary Convention: Considering the vigorous Resolutions of both Houses of Parliament last Session, considering the Spirit which at present prevails among all Ranks and Degrees of Men in this Kingdom, and considering the great Expence the Nation was put to last Summer, I believe it was what most Men expected: Yet notwithstanding, if none of our undoubted Rights or Privileges are rendered doubtful, or any way invalidated by this preparatory Way of Treating we may excuse our Negociators for agreeing to such Preliminaries for the Sake of Peace, provided it appears they had good Reason to hope that those Preliminaries would be soon followed by a sincere and satisfactory Treaty; but, I hope, Sir, this Nation is not yet brought so low, nor are we so fond of Peace, as to give up any of our Rights, or agree to any thing for present Ease, that may lay a Foundation for contesting some of our most valuable Rights in Time to come. Such an unlucky Situation, I hope, I am convinced, the Nation is not yet reduced to, whatever some Gentlemen may be, who perhaps consider their own immediate Ease, more than they consider either the Honour or the Interest of their Country.
'But suppose, Sir, there were no Matters of Law or Right to be explained to us, suppose it were no Way necessary to have the Law of Nations, or the Nature of preliminary Conventions explained to us, yet the Facts that are to be laid before us upon the present Occasion, are so numerous, and of such various Kinds, that it is not possible to have them methodically and regularly summed up without the Assistance of Counsel. We must see that it will be necessary for us to examine a great many Witnesses with regard to those Depredations that have been committed by the Spaniards both before and since the Treaty of Seville; with regard to the Importance of our Trade to and from our Plantations in America; with regard to the Dangers that Trade may be exposed to, if a Search of British Ships sailing to and from the British Plantations should be tolerated upon any Pretext, or under any Restrictions; and with regard to several other Points I could mention: Every one of these Witnesses may be able to give us an Account of some of the Facts he knows; but from daily Experience we may suppose, that even those Accounts will be but lamely and indistinctly given, unless we have Counsel at our Bar, who know how to put the proper Questions to them; and when all the Witnesses have been examined, we cannot suppose that any of the Petitioners will be able to sum up the Evidence, to digest all their Testimonies under their proper Heads, and to make such Remarks upon each Point of Evidence, as may be necessary for putting it in the clearest and strongest Light; for when a Subject is very copious, and a great many Facts of divers Kinds to be related, it is not possible for any Gentleman not exercised in the Art of Speaking, or not accustomed to speak before a numerous Assembly, let his Qualifications otherwise be never so great, to givea regular, distinct, and full Account of the Whole.
'From what I have said, Sir, I think it must appear, that it will be extremely proper for us to have the Assistance of Counsel upon this important Occasion. Nay, it is what I it is what I think those Gentlemen must be fond of, who are the greatest Friends to the Convention; for if it any way deserves those high Encomiums that have been made upon it, by some Gentlemen without Doors, the more clearly, the more distinctly, and the more fully this whole Affair is laid before the House, the more we shall be sensible of the great Honour and Advantage the Nation may reap by this preliminary Treaty; the more easy will it be for them to answer any Objection that may be made against it: For this Reason I cannot suppose, that the Motion I am to make will meet with any Opposition; and therefore I shall add no more, but conclude with moving, That the Petitioners may be heard by themselves or Counsel, as I have before mentioned.
'Though I am as fond as any Gentleman in this House can be, of receiving all possible Information relating to the Convention we have lately concluded with Spain; tho' I shall be glad to have that Information laid before us in the most full and methodical Manner, yet I cannot altogether approve of what the honourable Gentleman has been pleased to propose. And indeed it is because I am for having all proper Information relating to that Affair, and for having that Information laid before us in the most natural, clear, and succinct Manner, that I shall be against agreeing to some Part of his Proposition. I shall willingly concur with him in ordering the Petition now presented to us, to be referred to the Committee who are to consider of the Convention: I shall likewise concur with him in allowing the Petitioners to be heard by themselves before that Committee; but I cannot concur with him in giving them leave to be heard by themselves or Counsel; because in the Case now before us I do not think it proper to admit either those who have already petitioned, or any of those who may hereafter petition, to be heard by Counsel; and, my Reasons for being of this Opinion, I must beg leave to lay before you.
'I have a great Respect Sir for the learned Gentlemen of the Law, and shall always be glad to hear them hold forth at our Bar upon every proper Occasion; but I hope they will excuse me if I say, that I do not think their Manner of stating the Case, or relating Facts, the most natural; I hope they will pardon me, even if I should say, that it may sometimes serve to confound, instead of instructing their Hearers. Nay, as it is the Custom among them to be ready to take a Fee upon either Side of any Question, that may occur ether in this House or any other Court of Judicature, they must make it their Business to learn how to dress up a bad Cause in such fine Trappings, as to make it pass for a good one. Therefore, in Cases where no Matter of private Right or Property is to be disputed, I shall always be against exposing myself, or any other Gentleman in this House, to the Danger of being confounded or imposed on by Flowers of Oratory, or by an artful Manner of stating the Case, either on the one Side or the other; because, I can say, for my own Part at least, that I am afraid, last I should by such Means be persuaded to think that a good Cause which is really a bad one, or that a bad Cause which is really a good one! and my Fears in this Respect always encrease in Proportion to the Importance of the Case, in which I am to give my Judgment.
'After having thus shewn, Sir, the Danger of admitting Counsel to be heard before us, in any Case where it is not absolutely necessary, I must observe, that with regard to Facts, we can, in no Case suppose that Counsel can give us any Information, but such as they are instructed to give by those that employ them. In the present Case it is the Petitioners that must instruct them what Facts they are to insist on, what Witnesses they are to call for proving those Facts, and what may be the proper Questions to be put to each Witness; and, if we suppose the Petitioners capable of instructing their Counsel in all these Particulars, we must suppose them capable, by themselves of instructing this House, and of giving us all the Information as to Facts, that we could expect from their Counsel. I say, we must not only suppose them capable of doing it, but I am convinced they will do it in a more natural and succinct Manner, than the learned Barristers equally do. Facts, Sir, are plain Things, they may be disguised, but they cannot be cleared up by Eloquence; therefore, in all Cases where nothing but Facts are to be enquired into, the more numerous the Assembly is that is to judge them, the more Danger there is in allowing them to be stated or summed up by those whose Profession it is to be eloquent; and for this Reason I think we ought, in the present Case, to have all those Facts that may be necessary to be laid before us, stated in the most plain and natural Dress, which we may expect from the Petitioners themselves, but cannot from their Counsel.
'Then, Sir, as to Points of Right or Law, I do not think it possible that any such can arise with regard to the Convention. As to those the honourable Gentleman has been pleased to mention, I do not think that any one of them will be disputed in this House. Surely no Gentleman in this House will say, that the Spaniards have a Right to search any British Ship upon the High Seas: Nor do I believe that any Gentleman in this House will deny the Importance of our Plantation Trade, or that it will be exposed to great Dangers and Inconveniences, in case the Spaniards should be allowed to search our Ships sailing on the High Seas, upon any Pretext, or under any Restrictions. And as to the Point, whether we can be supposed to have admitted in any Degree of such a Search, by reserring all Matters in Dispute between the two Nations to be regulated by Plenipotentiaries? It is a Point in which I think there can be no Question: I am sure no Gentleman in this House will say, that from such a Reference any such Thing can be supposed. If a Man should claim 1000 Pounds of me, may not I submit to hear his Reasons, and examine his Vouchers, though I know I owe him nothing? Does this Submission shew any Acknowledgment in me, that that Sum, or any other Sum, is really due? So far otherwise, Sir, that I should think myself bound in Charity to confer with him upon the Subject, to the End that I might have an Opportunity to convince him of the Unreasonableness of his Demand, or Falsehood of his Vouchers, and thereby prevent his being induced to ruin himself by commencing an unjust Law-Suit against me. This, I say, I should think myself bound in Charity to do, especially if that Neighbour and I were in such Circumstances as made it our mutual Interest to cultivate a mutual Friendship; and, that this is the Case between Spain and us, I believe no Gentleman will deny. This, Sir, is all we have done with regard to the present Disputes between Spain and us: We have agreed to hear what they have to say, for no other End but to convince them that there is not the least Foundation for the Claims they have lately set up; and this we have done out of Charity to them, as well as out of Regard to our own Interest, in order to prevent an open Rupture between two Nations, whose mutual Interest it is to live in mutual Friendship. By the Reference we have agreed to, we cannot be supposed to have given up, or in the least invalidated any of our Rights or Privileges. We cannot be supposed to have admitted, in any Degree of any of their Claims: At least no such Supposition can be made by any but those who have a Mind to suppose so, only for the Sake of finding Fault with the Convention.
'This Nation, thank God! Sir, is far from being in any unfortunate Situation. I hope it will never be reduced to the fatal Necessity of giving up any of its valuable Rights or Privileges, for the Sake of Peace. I hope no Man has any Influence in his Majesty's Counsels, that for any selfish Consideration would advise him to do so. I am sure his Majesty would reject such Advice with the utmost Disdain; and therefore no Man, if he were wicked enough, will be so bold as to give it. But there are some Persons in the Nation, tho' none in this House, who are Enemies to his Majesty and his Family; and as such Persons place all their Hopes in Insurrections and Invasions, they endeavour to make the World believe, that this Nation is reduced to the lowest and most contemptible Condition, by which they hope to serve a double Purpose; for at the same Time that it contributes towards rendering our own People disaffected, they think it will encourage Foreigners to invade as, or provoke us to War, by refusing to do us Justice. This may have some Effect upon some ignorant and unthinking People, but no Man of Sense can be so imposed on; and it is now, I hope it will always be, in our Power, as soon as we think it necessary, to make our Enemies sensible, that our Forbearance proceeded from our Wisdom, and not from our Weakness or Pusillanimity
'From what I have said, Sir, it will appear, that none of those Points of Right that have been mentioned, can come to be disputed in this House; and surely we have no Occasion to hear Counsel, as to Points of Right which no Man will contest. But now suppose they were all to be contested, even in that Case, we could have no Occasion to take up our Time with hearing Counsel. All the Points that have been mentioned, and all the Points of Right that can come before us upon the present Occasion, are of a publick Nature; and, with respect to Matters of publick Right, there are many Gentlemen in this House, that understand them better, and can explain them more fully and clearly, than any Lawyer, whose Time is chiefly employed in studying the municipal Laws of his Country. I believe there is not a Gentleman in this House but would chuse, I am sure I would chuse, to hear the honourable Gentleman himself upon such a Subject, rather than any Lawyer in the Kingdom. It is in Matters of private Right of Property only, where the hearing of Counsel can be of any Advantage to us; because, as such Matters are generally more perplexed than Matters of a publick Concern, Gentlemen who do not make it their particular Study, cannot be supposed to know all the Laws and Customs that may relate to them, or the Precedents by which they ought to be regulated.
'In such Cases, Sir, in all Cases, where the private Right or Property of any Man in the Kingdom is to be affected by any Thing that is to pass in this House, I know it is usual to admit their Petitioners to be heard by the Counsel; but I know no Istance where Counsel have been admitted, in any Case, where national Right or Privileges only could be said to be affected I am far from thinking that any national Right or Privilege can be in the least affected, by our late Convention with Spain; but, if this were the Case, I think it would be a bad Precedent to admit Counsel to be heard upon such an Occasion. I know the Subject has a Right to a petition, even upon such Occasions: I shall always be not only for preserving that Right, but for encouraging the Practice. But, in all Cases, we have a Right to hear them or not, as we see Cause; and in Matters of a publick Concern we seldom hear them even by themselves. In Money Bills we never do: It is almost a general Rule, not so much as to receive Petitions against such Bills; and it would be extremely inconvenient to introduce the Practice of hearing Counsel in Cases of a publick Nature. If such a Practice should become frequent, our Sessions of Parliament would become not only annual, but continual. We shoul'd be obliged to fit from one Year's End to the other; in which Case, it wou'd be necessary to revive the ancient Custom of paying Wages to our Parliament Men; and, as Money is now of much less Value than it was when that Custom prevailed, it would likewise become necessary to increase those Wages, which would be a new and a heavy Charge upon all the Counties, Cities, and Boroughs in the Kingdom.
'Whoever therefore may be the Parties, Plaintiff and Defendant, when we come to take this Convention into our Consideration, it must, I think, Sir, appear to be a Precedent of a very dangerous Nature, to admit the Petitioners against it to be heard by their Counsel. For my own Part I am far from thinking, that the whole Body of our Merchants, Planters and Seamen, will appear as Plaintiffs against it. What Means may have been used for spiriting up Petitions against it, I shall not pretend to determine; but, I believe, if any Means had been made use of for spiriting up in its Petitioners Favour, we should have had as many Petitions of the one Side as the other; for I cannot but think, that the greatest Part of our Merchants, Planters, and Seamen, will always be for preserving Peace, if possible. And as to those who were concerned in negotiating this Treaty, I believe they think it stands in no Need of Counsel for its Justification: I believe they think it will sufficiently speak for itself; and therefore will not desire to have it recommended by the Arts of Eloquence; and, as I think the admitting of Counsel to be heard against it, is not only unnecessary, but in several Respects dangerous; as I think it would be taking up a great deal of our Time to little Purpose, I shall therefore conclude with moving for an Amendment to the honourable Gentleman's Motion; which is, That the Word either, and the Words or Counsel, may be left out of the Question.
Sir W. Windham.
Sir William Windham.
'I am glad to find that the honourable Gentleman who spoke last, is for shewing some Sort of Regard to the Petition now before us. I confess I had some Apprehensions, that this Petition would have been treated as the Petition of the City of London against the late infamous Excise Scheme was treated; that you would only have ordered it to lie upon the Table; because, I am convinced the Petitioners, if they are allowed to be heard, either by themselves or Counsel, will be able to make out all they have alledged, and more than they have alledged in their Petition.
'But, for my own Part, Sir, I must say, with respect to this Scheme of Peace, this Convention now before us, I do not think I stand in need of any Information the Petitioners can give, for assisting me to form a right Opinion of it. Upon the very Face of it, and at first View, it appears to me to be not only the most disadvantageous, but the most dishonourable Treaty we ever made. Nothing I think can in the least excuse our agreeing to it, but our being in the most unfortunate, the most contemptible Situation, an independant Nation was ever in; and this, I am sure the Petitioners cannot shew. If we are in such a Situation, which God forbid, it is those only who made this Treaty that can shew it; but if they should tell us that this was their Reason for advising his Majesty to ratify such a Treaty, it is far from being an Argument for our approving it. Unlucky Circumstances, either at home or abroad, may be a Reason for suspending our Resentment, but it can never be a sufficient Reason for our agreeing to a dishonourable Treaty; and, if we are in such Circumstances, it is the Duty of this House to enquire into the Conduct of those who have brought us into such Circumstances, and to punish them for their Wickedness or Folly; for this Nation can never be brought into such Circumstances but by the extreme Wickedness or Folly of those who have been intrusted with the Administration of our publick Affairs.
'This, I say, Sir, is the Opinion I have already formed: It cannot be made worse by any thing the Petitioners or their Counsel can say against, and I do not believe it will be made better by any Thing that can be said in Favour of this Convention. But as some Gentlemen may not yet look upon this new Treaty, or rather Preliminary to a Treaty, in the same Light I do, and as I think it necessary we should be as unanimous as possible in an Affair of so great Importance, I shall be for giving as much fair Play as possible both to our Merchants, and to those whom I must upon this Occasion look on as their Antagonists, I mean our Negociators, and others who were concerned in cooking-up this whetting Morsel, which they seem to have contrived on Purpose to make us digest any Treaty Spain, in all her Haughtiness, shall please to vouchsafe. I say, Sir, I shall be for giving both these Parties as much fair Play as they can desire, and therefore I shall be for allowing the Petitioners to be heard by themselves or Counsel. When we have given them this Liberty, they may then chuse which they think best; and as they know their own Abilities, and the several Matters they have to lay before us, much better than we can pretend to, they are certainly better Judges than this House can be, whether it will be necessary for them to have Counsel; for unless they think it absolutely necessary for them to employ Counsel, we may depend on it they'll save themselves the Expence.
I am sorry to find, Sir, that those who are against this Question, should think it necessary upon this Occasion to say any thing that may look like a Reflection upon the learned Gentlemen at the Bar. As they are not to set themselves up as Judges in any Case they are employed in, it is their Business, it is their Duty, where no palpable Fraud appears, to state their Client's Case in the fairest Light they can; and if, upon one Side of the Question, the Case be designedly put in a confused, or in a false deceitful Light, or if any sophistical Arguments be made use of, it is the Business of those who are employed on the other Side, to state the Case in a clear Light, to expose the Falshood or Deceit, and to shew the Sophistry of the Arguments made use of by their Antagonists. This renders it almost impossible for the Judges, or indeed for any Hearer, to be deceived or imposed on by the Art of the Speaker, upon either Side of the Question; and therefore the admitting Counsel to be heard in any Case, either of a publick or private Nature, can never be of the least dangerous Consequence, but on the contrary, must always be of great Use for giving the Judges a clear and distinct Notion of the Case in which they are to give Judgment, and of the Arguments that may be made use of upon both Sides of the Question.
'As the Gentlemen at the Bar are never, in any Case which they plead, to give their Judgment or their Vote, they may therefore lawfully, honestly, and honourably take a Fee for pleading any Cause they undertake; but where a Man is to give his Judgment or his Vote, I am sure every Gentleman in this House will agree with me, that it is neither honourable, honest, nor lawful to take a Fee, or any other Reward, either for speaking or voting. He ought not so much as to accept of a Favour, or a Present from either of the Parties concerned in the Case, in which he is to give his Vote or Judgment. Nay, in such Cases, if a Man has any particular Attachment to one Side more than the other, he ought not to look upon himself as an impartial Judge in that Affair; for which Reason he ought to avoid giving his Opinion. In all Cases therefore where there are two Parties concerned, Gentlemen ought to examine themselves strictly, before they venture to give their Judgment or their Vote upon either Side of the Question; for though the Heart cannot perhaps be corrupted, the Judgment may be misled, by Favours received, or by personal Attachments.
As to Facts, Sir, I shall allow they are plain Things, more plain perhaps than some People desire. They are so plain, that I do not find they can be disguised by all the mercenary Eloquence in the Kingdom. But, as plain as they are, it requires some Art, some Practice to state them in their proper Light, especially where they are numerous and of various Kinds. But with regard to Facts, we know that true Eloquence consists in relating what are necessary, and no more than what are necessary; therefore, for saving Time, we ought to admit the Petitioners to be heard rather by their Counsel than by themselves; for as none of them are practised in the Art of Speaking, they may forget, or omit, to give us an Account of some of the most material Facts, and dwell upon others that are nothing to the Purpose; so that a great deal of our Time may be taken up in hearing a prolix Account of Facts that are of no great Signification, and yet at the End we may have but a very lame Account of those Facts which are the most material. Counsel, 'tis true, must have Instructions from those who employ them: They must have an Account from their Clients of the Facts that may be proved, and of the Witnesses that can prove them; but in the Course of the Examination some material Facts may be hinted at, which the Petitioners did not know of before. If Counsel were present at the Bar, they would immediately lay hold of such Hints, and by putting proper Questions might have them fully explained: Whereas, otherwise, such Hints may probably pass unobserved, and by that Means some of the most material Facts may remain in Obscurity. From whence we may see, that it is not always from the Client that the Counsel are to learn what may be the proper Questions to be put to each Witness. The Client may in general say, that such a Witness is to be examined as to such a Point; but it is the Counsel that must think of the proper Questions to be put to him, in order to make him give an Account of all he knows relating to that Point; and those Questions cannot so much as be thought of, but in the Course of the Examination; which no Man can be supposed so capable of, as those who are daily conversant in such Affairs. Thus, Sir, it appears that, with regard to Facts, if we admit the Petitioners to be heard by themselves only, we may probably have a great deal more of our Time taken up, than if we were to admit them to be heard by their Counsel, and that we cannot expect so full and distinct an Account of all the material Facts, as we ought to have in an Affair of so great Importance. As we shall probably have a great many Petitions besides this now before us; as every one of those Petitions may complain of some particular Point that affects them only; the Examination of Witnesses must last for several Days, and must relate to Points of a very different Nature. In such a Case, can we suppose that any Gentleman, who has never made it his Business, will be able to sum up the Evidence? Let every Gentleman of this House apply the Case to himself: Let him lay his Hand upon his Heart and declare, whether he thinks he should be able to sum up the Evidence, notwithstanding his being acquainted with, and perhaps accustomed to speak in this Assembly. What then can he expect from any Gentleman that never was of this House, nor ever perhaps spoke before any public Assembly?
Now, Sir, as to Matters of Right or Property, the honourable Gentleman endeavoured first to shew, that no such Matter could come to be disputed before us. Sir, I believe the Rights of this Nation, that have been lately disputed by Spain, will not be in the least controverted before us. No Man will dare to stand up in this Assembly, and deny any of those Rights, that Spain has been lately allowed to dispute with us. It was inconsistent with the Honour of the Nation to allow them to be disputed in any Negotiation. That of a free Navigation upon the open Seas, is a Right so plain and evident, and of such Consequence, that we ought to have broke off all Manner of Negotiation, as soon as the Spaniards pretended to deny it; and since they had pretended to set up a Claim that was inconsistent with this Right, we ought never to have renewed our Negotiations with them, till they had previously relinquished that unjust Claim, and expressly acknowledged our Right. Whereas it now appears, that we have not only negotiated, but have treated without any such Relinquishment or Acknowledgment: Nay, we have expressly, by this Treaty, referred it, amongst others, to be regulated.
What the Meaning of this Reference may be, Sir, what Interpretation may be put upon it, is a Matter of Right that must be inquired into, before we approve of this Treaty. It is not what Meaning may be put upon it by this House, or by any Gentleman in this House, that we are to enquire into. It is what Meaning may be put upon it by Spain, or by Foreigners; for if the Court of Spain, or any foreign Court whatever, can suppose, that by this Reference we have in any Degree admitted of those Claims the Spaniards have lately set up against us, it will with them bring this Nation into Contempt; and surely the Parliament of Great Britain is not to approve of a Treaty that will bring Great Britain into Contempt, at any Court in Europe. It is not, Sir, because I have a mind to find Fault with this Treaty, that I suppose this Reference will be interpreted as an Admission of the most dangerous Claim Spain has set up against us: It is because I think such a Reference cannot be otherwise interpreted, that I must find Fault with this Treaty. Spain pretends to a Right to search our Ships upon the open Seas, and to confiscate the Ship and Cargo, if one Shilling's Worth of any Goods be found on Board, which they may please to call the Produce or Manufacture of their Plantations. This Right, among the rest, we have referred to be regulated. Is not this acknowledging the Right? Is it possible to regulate a Right that never was in Being? Let us put the Case the other Way. We pretend, and most justly pretend, to free Navigation on the open Seas. Formerly we pretended to a Dominion over the Seas; but now we are reduced to pretend only to what every independant State has a Right to by the Law of Nations; and even this Right we have, by this Treaty, referred to be regulated by Spanish Plenipotentiaries. Is not this the greatest Indignity that ever an independent Nation submitted to? Shall we allow Spain to prescribe Rules to the Freedom of our Navigation in the open Seas? If we should now say, we cannot admit of any such Thing, Spain may justly reply, you have already admitted it by your preliminary Articles; the only Thing the Plenipotentiaries have to do, is, to settle and agree upon those Rules which we are to prescribe.
If any Man should claim of me, Sir, 1000l. which I knew he had not the least Pretence for, I should, perhaps, out of Charity, vouchsafe to hear what he could say in Justification of his Claim, but I should think myself a Madman, if, to avoid a Law-suit, I should submit such a Claim to Arbitration. We have heard the Reasons alledged by Spain, for every one of the unjust Claims they have lately set up against us, We have had the Patience to hear them over and over again, during the long Course of our Negotiations. We ought, I am sure we could, and I hope we have shewn them, that there is no Weight in any of the Reasons they have alledged, nor the least Foundation for any one of the Claims they have set up. This we might have done for once, without doing ourselves any notable Injury; but we negotiated too long, and now at last, by this Treaty, we have submitted all the unjust Claims they have set up against us to Arbitration. They must have been convinced long before now, that they had no reasonable Pretence for refusing to do us Justice; but, if they were not, can we hope that they will be more tractable, or less obstinate, in conferring, than we have already found them in negotiating? Can we expect that the Arguments of Mr. Keene the Plenipotentiary will have greater Weight than the same Arguments had when urged by Mr. Keene the Envoy? No, Sir, they will not now admit him to say, 'You have no Right to search our Ships upon the open Seas, under any Pretence whatsoever:' They will tell him, 'You have already, by the preliminary Convention, admitted our Right; your only Business now is, to propose to our Plenipotentiaries such Regulations as may make our Right of searching as little hurtful to your Trade as possible.' This is what I am convinced the Spaniards will say; and whether or no they may have a Right from the Words of this Treaty to say so, is a Question of Right, which we ought to hear argued by Counsel, before we pass Judgment upon this Convention. If there be the least Pretence for their saying so, they have already got a great Advantage over us, by his Majesty's Ratification; but they will get a much greater, by the Parliament's Approbation of that Treaty, which furnished them with such a Pretence.
'I am glad to hear, Sir, from the honourable Gentleman, that the Nation is far from being in any unfortunate Situation; because he ought to know, and I am convinced he never speaks contrary to what he thinks; but whatever we may think or say within Doors, I am afraid a very different Opinion generally prevails without Doors. The People do not judge from what they hear, but from what they see and feel. They have felt themselves insulted, plundered, and cruelly used, by the Spaniards: They have as yet found no Reparation, nor do they know of any Vengeance that has been taken. On the contrary, it is well known both abroad and at home, that we have tamely submitted to repeated Insults and Depredations for many Years. We have submitted so long, that the Spaniards seem to think they have acquir'd a Right by Prescription to plunder our Merchants, and abuse our Seamen as often as they have a mind. From our suffering such Injuries and Indignities to pass unpunished, not only our own People, but every Foreigner that hears of it, may have some Reason to conclude, that the Nation is in a weak and contemptible Condition, or that some of those that have an Influence in our Counsels, are swayed by Motives inconsistent with the Honour and Interest of their Country. It is not from the Reports of his Majesty's Enemies, but from the Conduct, of his Majesty's Ministers, that People form their Judgment; and therefore, if there be any one, either at home or abroad, that supposes this Nation to be in an unfortunate Situation, it must be imputed to his Majesty's Ministers, who, in this Respect, might indeed be justly called his Majesty's greatest and most dangerous Enemies.
'In the Case now before us, Sir, we ought to consider rather what the People without Doors may think, or what Foreign Nations may think, than what any particular Genleman of this House may think of our present Situation. From our past Conduct, I am afraid, Foreign Nations have already begun to form a very unfavourable Opinion of our Circumstances; but, if they should see a Treaty approved of by Parliament, containing any Words that can be interpreted as an Admission of a Right, which no independent Nation ever submitted to, they must form a most contemptible Opinion of us, and certainly will treat us accordingly. Therefore, I think it is absolutely necessary for us to hear Counsel, upon what may be thought to be the Import of that general Reference, which seems to be the chief Article of this Treaty.
'I do not question, Sir, but that there are several Gentlemen in this House, who are pretty well acquainted with the Law of Nations, and the Nature of Treaties; I have one in my Eye, who must be allowed to be a great Master in this Way; for tho' he never made it his Profession, he is well known to have had great Practice; and, I make no Doubt of our having his Assistance, when this Treaty comes to be explained. But no Gentleman, who never made this Study his Profession, can be supposed to be so well acquainted with it, as those that do. In one of our Courts of Justice, I mean our Court of Admiralty, we know that the Barristers or Advocates are obliged to make this Study their particular Profession; and as our other Barristers may happen to be employed in Appeals from that Court, most of them are obliged to make themselves thorough Masters of the Law of Nature and Nations, especially with regard to maritime Affairs. Therefore, when an important Question of any such Nature is like to come before us, it must always be of great Use to hear Counsel, before we give our Opinion upon the Question.
'In any such Case, Sir, our admitting Counsel to be heard can never be a dangerous Precedent. If it were established as a general Rule, it could be attended with no bad Consequence; because such Cases rarely occur. But, if they were much more frequent, it would be no Argument against doing our Duty, which is, in all Cases, to endeavour to be thoroughly informed before we give our Opinion. If this should prolong our Sessions of Parliament, and if the Length of our Sessions should make it necessary to revive the antient Custom of paying Wages to our Parliament Men, I cannot think that either would be a Loss to the Nation, or an Innovation of our Constitution. The last would certainly be an Advantage, because it would make our little Boroughs do as many of them have formerly done: It would make them petition to be freed from the Burden of sending Burgesses to Parliament; and if no little Borough in the Kingdom sent a Member to this House, it would, in my Opinion, be an Advantage to the Nation, and an Improvement of our Constitution; because the People would be much more equally represented.
'But now, Sir, suppose it were allowed to be an established Rule in our Proceedings, never to admit Counsel to be heard in any Case, where no private Right or Property is concerned; yet this could be no Argument against our admitting Counsel to be heard with regard to this Convention; because it must be granted, that the private Property of great Numbers of his Majesty's Subjects is deeply concerned. The Claims of our Merchants, the Property they have been robbed of, amounts to above 400,000 Pounds. The very Petitioners now before us have a great Share in this Property; and shall we say their private Property is no way concerned, when that whole Claim is to be given up for 95,000 Pounds? Can a Man's private Property be said to be no way concerned, when he finds himself in Danger of being obliged, by Authority of Parliament, to accept of less than five Shillings in the Pound, from a Debtor who does not so much as pretend to be Bankrupt or Insolvent?
'The People of Georgia and Carolina; Sir, have a Property in the Lands they possess, founded upon what ought to be held one of the most sacred Rights in the World, the King's Grant, and their own Industry; and can their Property be said to be no way concerned, when Limits are to be settled, by which some of them must, and, for what they or we know, all of them may be stript of their Possessions? I say, Sir, some of them must, and all of them may; for if we happen to be infected with the same complaisant Humour when we conclude the definitive Treaty, with which we seem to have been infected when we concluded the Preliminary Articles, I do not know but the Whole, or a great Part of South Carolina may be made a Present for keeping the Spaniards in good Humour. At least, some of the Southern Parts of Georgia must be given up; for it would have been ridiculous in us to refer the Limits between the Spaniards and us in Florida to be settled by Plenipotentiaries, if at the same Time we had been resolved not to part with an Inch of what we then pretended to.
'The South-Sea Company, Sir, have a Right and Property in the Assiento Contract; a Property that would have been a great Value to them, as well as to the Nation, if we had taken Care to resent in a proper Manner every Invasion that was made upon it. Can it then be said, that the private Property of the South-Sea Company is no way concerned in a Treaty, when by the fundamental Article of that Treaty, I mean the King of Spain's Declaration, agreed upon with reciprocal Accord, we have, in some Measure, acknowledged his Right to suspend the Assiento Contract, unless that Company subjects herself to pay, within a short Term, a large Sum of Money, which he has no good Right to demand, and which, though he had, he ought to allow in Part of Payment of a much greater Sum due by him to them?
'Sir, the private Property of the South-Sea Company must be so deeply concerned in any Question that can come before us relating to this Convention, and has, in my Opinion, been so greatly injured by our receiving or agreeing to this Declaration, that I am surprised they were not the first to petition against the Convention. I know of no Means that have been made use of, either publick or private, for spiriting up Petitions against it, except that of its being printed and published: I believe there was no Occasion for making use of any other Means. But, if the South-Sea Company do not petition against it, I shall be convinced that some under-hand Means have been made use of for preventing such Petitions; and from thence, I shall be apt to suspect that, if it had been possible to procure any one Petition in its Favour, no proper Means would have been wanting.
Sir, I think I have made it appear, that the private Property of a great many of his Majesty's Subjects, must be concerned in any Question that can come before us relating to this Convention: I think it is evident, that the private Property of those whose Petition we have now before us, must be deeply concerned: And therefore, if Counsel are ever to be heard in any Case where private Property is concerned, they ought to be heard when we come to take this Convention into our Consideration. For which Reason I shall be for agreeing to the Motion without any Amendment.
John Talbot, Esq;
John Talbot, Esq;
'Tho' I am far from thinking it dangerous to hear Counsel upon any Case whatever, yet I cannot think it is always necessary; and in Parliamentary Affairs, when it is not absolutely necessary, I must think it ought not to be allowed; because, by so doing, we take up a great deal of our Time, and lay those who have Business before us under a Temptation, at least, of putting themselves to Expence to no Purpose. This, Sir, is far from being a new Opinion, or a new Way of thinking; for however necessary some may think it to hear Counsel in every Case that comes before Parliament, or before our Courts of Justice, it was not thought so of old: So far otherwise, that by the Common Law of England, neither the Plaintiff nor Defendant, in any of our Courts of Justice, could appear by his Attorney, without the King's special Licence signified. to the Court, by his Writ or Letter: Every Man of old was obliged both to prosecute and defend his Suit in his own Person; and upon this Custom, the learned Coke observes, that it made LawSuits less frequent, which, I believe, was no Loss to the Kingdom in general, whatever Inconvenience it might be to particular Persons.
I may say upon the present Occasion, that it would be very unadvisable to introduce the Custom of permitting every Man to be heard by his Counsel, that might think himself aggrieved, by any Regulation proposed in Parliament for the publick Good. In some Cases of an extraordinary Nature this perhaps has been allowed; but it cannot yet be said to be an established Custom; and I hope it never will. In Cases where the Rights and Properties of private Men appear to be concerned, it may sometimes be necessary to hear Counsel; but even in such Cases, we ought to distinguish between those in which some nice Point of Law may probably arise, and those in which no such Point of Law can come to be canvassed before us. In Cases of private Right or Property, where some nice Point of Law may probably arise, it becomes necessary for us to have that Point argued by Counsel learned in the Laws of the Kingdom; and for that Reason we ought, in such Cases, to admit the Parties or Petitioners to be heard by themselves or Counsel: But in Cases where no such Point can be expected to arise, notwithstanding there being such as may affect the Property of some private Men, it is no Way necessary; nor ought we to take up our Time with hearing Counsel as to Facts, or clear Points of Law, which every Gentleman in the House may comprehend as readily and as fully, as the most learned Lawyer that can be brought to plead before us.
This, I believe, Sir, will be allowed to be the Case, with regard to the Convention. The Rights of some private Men may perhaps be affected by some of the Resolutions we may come to upon that Occasion; but no one, I think, can expect, that any difficult Point of Law, relating to that Right or Property, can come to be disputed. And if in the Course of our Examination some Point of Law should arise, which may be thought proper to be explained by Counsel, we may then order, that the Petitioners shall then be heard by themselves or Counsel, as to that Point only.
'In this Way, Sir, we may save ourselves a great deal of Time and Trouble, and may prevent the Petitioners putting themselves to a needless Expence; and if this Method were established as a general Rule in all our Proceedings, even in Cases where the Right or Property of private Men may be affected, no Man could say it would be any Way inconsistent with our Constitution; for in criminal Cases of the highest Nature, in Cases of Felony, the Prisoner is not admitted to be heard by Counsel, unless upon the Trial some Point of Law arises, and then he is to be heard by Counsel as to that Point only; and even in Cases of High Treason our Constitution was the same, till it was altered by a late Statute; for where the Law is plain, there is certainly no Occasion for Counsel in any Case either before Parliament or any inferior Court of Judicature; and as to Facts, they ought to be related and explained so as to make the Truth appear by the Depositions of honest and sincere Witnesses, and not by the Glosses that may be put upon them by ingenious and artful Pleaders.
'Therefore, Sir, by the antient Form of our Constitution which I think, for the Sake of Dispatch, ought to be observed as a Rule in our Proceedings, we have no present Occasion to order the Petitioners to be heard by their Counsel. Nay, they themselves seem to be conscious that it ought not to be done; for they have not so much as petitioned to be heard by themselves or Counsel, they have petitioned only in general to be heard. If any Question should arise relating to Matters of publick Right, or the Meaning of Words in this or any other Treaty, we have the good Fortune to have several Gentlemen amongst us, that can speak to it as fully, and as learnedly, as any Counsel the Petitioners can employ; and as an Addition to our good Fortune in this Respect, I believe, those Gentlemen will not be all of one Side: I even hope they will be of different Opinions, in order that we may hear the Point as fully argued in that Case, as we usually do in other Cases of the same Nature. Then as to managing or summing up the Evidence, we have the same good Fortune. We have Gentlemen amongst us, that are as capable of putting proper Questions to the Witnesses during the Examination, and summing up the Evidence after the Examination is finished, as any Lawyer that ever appeared at our Bar; and as some of those Gentlemen may probably be of the same Opinion with the Petitioners, and some of a contrary Opinion, we may expect to have the Examination well managed, and the Evidence fully summed up on both Sides.
'I am surprized, Sir, any Gentleman can imagine, that less of our Time will be taken up in hearing the Petitioners both by themselves and their Counsel, than in hearing them by themselves only: For the Case is really that if you order them to be heard by themselves or Counsel, they will chuse to have Counsel, not because it is necessary, but because after the Counsel have opened the Subject-Matter of their Complaint, such of them as can say any Thing upon the Subject, will be called as Witnesses, and may in that Shape say as much, and take up as much of your Time, as if they were to be heard by themselves only. By this Means they will have the Advantage of having their Case twice laid before you, and in a two-fold Manner, first by their Counsel, and then by 'themselves; and therefore, I think, it is certain, they will chuse to be heard by their Counsel, in case you give them Leave.
'But there is another Reason, Sir, why I think they will chuse to be heard by their Counsel, which, in my Opinion, ought to be a strong Reason with us not to hear them by Counsel. 'Tis certain we have not obtained so much by this Convention as some sanguine People might expect: 'Tis certain we never did obtain so much by any Treaty we have made, nor ever shall by any Treaty we can make. Wise Men will always give up something of what they may have Reason to expect, rather than risk the Whole upon the doubtful Event of a War; and what they do give up, will always be in Proportion to the Chance that is against them. To set this Chance in its proper Light, the Power of your Enemies and your own Weakness must be truly represented, without magnifying either the one or the other; but as it is, and always will be, unpopular to talk of the Strength of your Enemies, or of your own Weakness, therefore the popular Side of the Question will be always against any Treaty or Convention you can make; and as there is always the greatest Scope for Eloquence upon the popular Side of any Question, the Petitioners will certainly chuse to have as much Eloquence upon their Side as possible, and for that Purpose will chuse to have Counsel, if we give them the Liberty: But with us this ought to be a Reason for not admitting them to be heard by their Counsel; because we are to consider, not what is most popular, but what appears from the present Circumstances of Things to be most for the publick Good. As this is certainly the Duty of every Member of this House, I do not believe that any Gentleman, who has the Honour of being a Member, will allow himself to be influenced by the Eloquence either of the Petitioners or their Counsel; and therefore, if there were none here present but Members, I believe, neither Side would attempt to take up our Time with their Eloquence; but as there is upon Occasions a great Number of Persons present, besides those that have a Right to Counsel, they will consider rather what they may say to the Audience, than what they ought to say to the Judges; and that consequently a great Part of our Time will be unnecessarily taken up, in hearing florid Harangues upon the Riches and Strength of the Nation, upon the Courage of our People, and upon our warlike Exploits in former Ages.
'I hope I have now shewn, Sir, that it does not yet appear to us, that it will be any Way necessary for us to hear Counsel upon any Thing relating to the Convention; therefore, I hope I shall be excused, if I give my Vote for the Amendment proposed.
Samuel Sandys, Esq;
Samuel Sandys, Esq;
'The Gentlemen who have spoke upon this Occasion, against admitting the Petitioners to be heard by Counsel, put me in Mind of the old fabulous Story of Proteus. When they find themselves like to be overcome in one Shape, they turn themselves to another. In the former Part of this Debate they told us, Counsel was never to be heard, but in Cases where the Rights or Properties of private Men were like to be affected, by what was to come under the Consideration of Parliament. In Answer to this, it was, I think, demonstrated, that the Right and Property of private Men must be greatly affected by this Convention, especially if it should meet with the Approbation of Parliament. This they could not deny, and therefore they have now turned themselves into another Shape, by saying that Counsel are not to be heard, even where the Property of private Men may be affected, unless some nice Point of Law, relating to that private Property, arises, during the Course of the Examination. This they say ought to be the Rule in all our Proceedings. They could not say it is, or that it ever was a Rule. They could not say so; for every one knows, that it is contrary to the whole Tenour of our Proceedings, as far back, as we can trace our Journals. It would be ridiculous to attempt to shew it to be so by Precedents: They are so numerous that they may be said to be numberless. But what is still more extraordinary, they have endeavoured to shew, that this ought to be a Rule, by mentioning some old Customs, which, because of the Inconveniences or Injustice of them, have been abrogated.
'In ancient Times, Sir, it was perhaps a Rule, that no Man should be allowed to sue or defend by his Attorney, without the King's License; and this could be attended with but little Inconvenience to the Subject, whilst almost all Causes were heard and determined in the County where the Parties resided: But as soon as the King's Courts began to be fixed at Westminster, it was necessary to allow every Man to sue or defend by his Attorney; for which Reason the King's License became a Writ of Course, and at last, as being a needless Expence to the Suitors, was intirely laid aside; so that for some hundreds of Years past, Parties in all civil Causes have been constantly allowed, without any Warrant by the King's Writ or Letters-Patent, to appear by Attorney, and to have their Cause pleaded by Counsel; which without doubt makes Law-Suits more frequent than they would otherwise be; for if Parties were now obliged to attend a tedious Law-Suit, and neglect all their other Business, no Man would either prosecute or defend his Right, unless it were of a very great Value.
'Then, Sir, as to criminal Causes, I know that those who were accused of Treason or Felony, were not of old allowed Counsel, unless some difficult Point of Law happened to be started upon the Tryal; because, as our Lawyers say, the Judges are to be of Counsel for the Prisoner, But every Man will, I believe, grant, that this was a Severity, introduced in favour of the Crown, nor very favourable for the Subject. Our Volumes of State-Trials will make it appear, how seldom the Judges have acted the Part of being Counsel for the Prisoner. They often appear rather to have acted the Part of being Counsel against him, and have treated a Man as a Traytor before he was condemned either by God or his Country. Thank God! with regard to Treason, we have got free of being obliged to have none other but such Counsel: We have got this ridiculous Custom altered by Means of the Revolution, which has in some Measure restored our original Constitution, though not so fully as it ought to have done; for a Revolution introduced and established upon the Principles of Liberty ought to have rooted out every Stem of arbitrary Power, whereas in some Cases it may rather be said to have planted it; which shews the Weakness of human Forefight, and how necessary it is for the Patrons of Liberty to be always upon their Guard.
'With respect to Felonies, 'tis true, Sir, the antient Custom still remains; but I am surprised it has not in this Case likewise been altered by Statute. 'Tis better twenty Guilty escape than one Innocent suffer; and I am convinced, this Custom has been the Occasion of many an innocent Man's being condemned, who, if he had been allowed Counsel, would have made his Innocence as bright as the Sun-shine. 'Tis impossible for an ignorant Man to tell when a Point of Law arises; and the more innocent he is, the more ignorant we may suppose him: Those that are never guilty of any Crime, are seldom at the Pains to study the criminal Laws of the Kingdom, or the Methods of Trial in such Cases; and therefore the more unfit are they, of themselves, to conduct the Examination of Witnesses, or to take notice, and make the proper Advantage of any Point of Law that may arise in the Course of the Examination. They must depend intirely upon their Judges, and the Judges may in the Case of Felonies behave as they have hitherto done in the Case of Treason: They may brow-beat the Prisoner, and thereby prevent his taking notice of, or insisting upon those Points of Law, which he may have good Reason to insist on.
'But, Sir, whether this Custom of allowing Persons accused of Treason or Felony to have Counsel, be a laudable Custom or not, it is a Custom that has always been observed by Parliament. Was there ever a Person accused in Parliament of any Crime or Misdemeanor, that was not allowed Counsel, if he desired it? In Bills of Pains and Penalties, are not those against whom the Bill is designed, always allowed to be heard by their Counsel against the Bill? In Impeachments in the other House, the Person impeached, though for High Treason, has always been allowed Counsel, even when the Custom prevailed of not allowing Counsel to Persons that were to be tried for such Crimes in inferior Courts. It is therefore wrong to draw Arguments from what is now, or ever was the Practice of inferior Courts, for shewing what is or ought to be the Practice of Parliament; and if we follow the Custom of inferior Courts with regard to Treasons and Felonies, the Petitioners ought to be allowed Counsel, but our Treaty-makers none.
'However, Sir, as this Custom was never yet introduced into Parliament, if our Treaty-makers, upon their Treaty's being censured by Parliament, which I hope it will, should be prosecuted either by a Bill of Pains and Penalties, or by any other Parliamentary Method of Prosecution, I should be for allowing them more Favour than some of their Friends seem willing to allow to the Petitioners: I should be for allowing them to be heard by their Counsel against any such Bill or Prosecution.
'It is a little extraordinary to say, we must not allow the Petitioners to be heard by their Counsel, because they have not expresly petitioned for it. Sir, they have petitioned to be heard, but they have been so modest as to leave it intirely to us to appoint which Way they shall be heard. Their Modesty shews their Respect for this House; and shall we make People suffer for shewing us a decent Respect? If we should ever do so, I think we should deserve to meet with none, upon any future Application; and now it has been moved to order them to be heard by themselves or Counsel, if we should refuse to give them the Liberty of being heard by their Counsel, I am afraid it will be looked on, by People without Doors, as a preliminary Step towards our approving of this preliminary Treaty, which the whole Nation disapproves of, and consequently will very much tend towards diminishing that Respect, which the People of this Nation have always hitherto had for their Parliaments. They will despair of ever meeting with any Relief from Parliament, and as soon as this Despair becomes general, they will begin to think of other Methods for obtaining Relief, which may be attended with the most dreadful Consequences, that may be fatal to our Religion and Liberties, but Consequences that may, much more probably, be fatal to the Royal Family now upon the Throne.
'I shall readily grant, Sir, that wise Men will give up something of what they may reasonably demand, rather than risk the Whole upon the doubtful Event of a War, especially when the Chance of War seems to be against them. But whatever the Precepts of Christianity may inculcate, I am sure the Precepts of Wisdom, especially in political Affairs, can never direct that, if an Enemy takes our Cloak, we should give him our Coat also, or that, if he gives us a Box on one Ear, we should hold up to him the other; which seems to be our Case with regard to Spain. They have taken from us our Cloak, and by this Convention, we seem willing to give them our Coat also: They have given us a most, hearty Blow, I may say several Blows, on one Ear, and by this Convention, we seem to hold up to them the other. They let a Captain of one of our Merchant Ships escape, some Years since, with the Loss of but one Ear; but if a British Parliament approves of this Convention, every British Subject, that shall hereafter have the Misfortune of falling into their Hands, must expect to lose both.
'I shall likewise grant, Sir, that in order to determine whether the Chance of War be for us or against us, the Power of our Enemies and our own Weakness must be considered, and that, in order to judge whether we ought to have accepted of this Convention, we ought to view both in their proper and true Light; but if Spain is to be assisted by none of the other Powers of Europe, I am sure, neither their Power nor our Weakness can be urged for our giving up any Thing we have a just Pretence to. I am sure, Spain is not now near so powerful as it was in the Days of Queen Elizabeth, and considering the Union of the two Kingdoms of England and Scotland, and the great Improvements we have made in our Trade and Plantations, since the Queen's Reign, tho' we have been upon that Decline for some Years past, I must think we are now more powerful than we were at that Time; and yet that wise Queen was so far from bearing tamely any Injury that was offered by the Spaniards, that she always pursued them with immediate Vengeance, and provoked them to Battle in every Corner of the World. Therefore, if Spain is not to be assisted by any of the other Powers of Europe, we could be under no Necessity to accept of this Convention; and if the Spaniards are to be supported by France, in the unjust Claims they have set up against us, and the Piracies and Cruelties they have committed upon our Merchants and Seamen, I must say, we have shewn a great deal of Complaisance to that Kingdom, for almost these twenty Years past, to very little Purpose.
'But these Things, Sir, the Counsel that are to be heard for the Petitioners can have nothing to do with. They are only to shew us what we have given up, or what we may be supposed to have given up, by this Treaty; and the Consequences of the Concessions we have made, or are like to make, with regard to the Nation in general, and with regard to the Rights and Properties of the Petitioners in particular. It is this House only, that is to consider, whether we are in such Circumstances as to render it necessary to make such Concessions. The Counsel have nothing to do with, nor can they be supposed to know, any Thing either of the Circumstances of this Nation, or of the Circumstances of our Enemies; therefore we cannot expect to hear from them any florid Harangues, either upon our own Strength or Courage, or upon the Weakness and Cowardice of our Enemies; and consequently we need not be afraid of having our Time taken up with hearing eloquent Addresses made by them to the Galleries. But after they have finished and are withdrawn, I shall expect to hear from some Gentlemen in this House as florid Harangues, as they are capable of making, upon the Utility and Wisdom of peaceable Measures, which in a trading Nation is certainly a more popular Subject, and consequently a Subject which affords a greater Scope for Eloquence, than the Subject of War can afford to any Orator in the Kingdom. The Love of Peace and peaceable Measures will always be a popular Subject among a rich and industrious People, as long as there is nothing done for the Sake of Peace, that is either dishonourable or disadvantageous to the Nation. But when this happens to be the Case, I shall admit that War then becomes the popular Subject, which I am afraid, indeed, is too much our Case at present.
Sir, it seems now, as I have said, to be allowed, even by the Gentlemen who have spoke upon the other Side of the Question, that the Rights and Properties of private Men may be greatly affected by this Convention; but, say these Gentlemen, shall we allow every Man to be heard by his Counsel, that may think himself aggrieved by any Regulation proposed in Parliament for the public Good? I shall grant, Sir, that the public Interest is to be preferred to the Interest of any private Man; but I hope it will be likewise granted, that if any particular private Man, or Set of private Men, is to suffer a real Loss by what is to be done for the public Good, the Public ought to make him all possible Atonement; and therefore, if any Set of private Men think that they in particular will be aggrieved by what is proposed for the public Good, and we see Cause to believe that it may be so, we generally ought not only to receive their Petition, but to allow them to be heard by their Counsel; and that, even altho' there be no Likelihood that any difficult Question in Law, relating to their Property, can arise upon our Examination into the Affair. For if a private Man must suffer for the Sake of the Public, we ought to give him an Opportunity of making the Amount of what he is like to suffer appear as clearly as possible, in order that we may provide a Remedy, or make him an adequate Satisfaction.
However, Sir, as the Gentlemen of the other Side have allowed, that, in Cases where difficult Points of Law relating to the Rights of private Men may probably arise, the Petitioners ought to be allowed Counsel, I think this alone is sufficient for convincing us that, in the present Case, the Petitioners ought to be admitted to be heard by themselves or Counsel. For, I think, it is evident, that a very nice Point of Law must arise, when we come to take the Convention into Consideration. We must then enquire into the Import and Meaning of those Words in the Convention, by which we submit all the Claims set up by Spain to be regulated by Commissaries. I hope these Words do not import an Admission of any of their Claims; but I am far from being clear as to this Point; and I am sure it is a Point in which the Property of every one of our Planters in the West-Indies, especially Jamaica, is deeply concerned. I could mention several other nice Points that will probably arise in the Course of our Examination; but this I take to be sufficient for shewing the Necessity of admitting the Petitioners to be heard by Counsel, even according to the Maxims laid down by those that argue against it.
Now, Sir, as to our Time. I must confess that an honourable Gentleman has fallen upon a very ingenious Method for persuading us, that more of our Time will be taken up in hearing the Petitioners by their Counsel, than by themselves only. He has told us, that if we order them to be heard by themselves or Counsel, it will in Effect be, to hear them both by themselves and Counsel; because, says he, we shall first hear their Case stated by their Counsel, and then we shall hear it stated again by them, when they come to be examined as Witnesses. I wish the honourable Gentleman had considered, for surely he knows, what is the Business of Counsel, and what is the Business of Witnesses upon such Occasions. It is the Business of Counsel to state the Case, before the Examination of Witnesses begins, and to sum up the Evidence after it is over; both which they are to do in as clear and as short a Manner as they can; and it is likewise their Business to take Care, that every Witness shall give an Account of all the material Facts he knows, in as plain and clear Terms as possible. Then it is the Business of every Witness to give a true and sincere Account of all he knows, relating to the Affair upon which he is examined, and to give plain Answers to such Questions as shall be put to him. This is their respective Duties, and it is the Business of the Judge to keep them to their Duty; therefore, after the Petitioners Case has been stated by their Counsel, none of them can, and I believe, none of them will presume to state it over again, when they come to be examined as Witnesses: If any one of them should, any Member may rise up, and by giving him a proper Check, confine him to his Duty. But if we do not admit the Petitioners to be heard by Counsel, what must be the Consequence? Some of themselves must supply the Place of Counsel. Some of them, by the Appointment of the rest, must state the Case at the Beginning of the Examination, and some of them must sum up the Evidence after the Examination is over; and those very Petitioners, who are appointed to state the Case, or sum up the Evidence, may, pay, probably must, be examined as Witnesses, for proving some of the Facts that may not, perhaps, be known to any of the other Witnesses; for otherwise, you would lay the Petitioners under a very great Disadvantage, because the best Speakers among them may be the best Witnesses, and if you should refuse to hear them in a double Capacity, the Petitioners must be deprived of having their Case stated by she best, perhaps the only Spokesmen among them, or of having their best Witnesses admitted to be examined. Therefore, in this Way, as well as the other, they will have an Opportunity, if they should think proper, and you should allow them, to lay their Case twice-before you, first as Petitioners, and next as Witnesses. But the Difference between the two Methods of hearing them, is, that, if you hear them by themselves only, as they are not accustomed to such Things, and may be more sangaine than they ought to be, most People are in their own Cause, they will, probably, be more tedious, both in stating their Case, and summing up their Evidence, than Counsel would be: And even when they are examined as Witnesses, their Fear of forgetting any Thing material, will make them more apt to fall into Repetitions and Tautologies, than they would be, had they Counsel at the Bar to direct them, and to put them in mind of any material Fact which they knew, and had forgot to give an Account of. From whence, we must conclude, that more of our Time will be unnecessarily taken up in hearing the Petitioners by themselves only, than in hearing them by their Counsel.
I have as good an Opinion in general of the Talents and Qualifications of those, who have the Honour to be Members of this House, as any Man can have: I have a very great Opinion of the Abilities of some among us; but, Sir, as we are Judges, we cannot be Counsel in any Affair that comes before this House; unless we take up that Office which, the Lawyers say, is the Duty of those who are the Judges of our inferiour Courts, I mean that of being Counsel for those that are accused of any Crime or Misdemeanor. If we consider ourselves in this Light, we must be of Counsel against the Petitioners, we must be of Counsel for those who, the Petitioners say, have brought their Country into a most dishonourable and disadvantageous Treaty; and in this Light, surely, we must allow the Petitioners to have Counsel, as other Prosecutors have; because we are all to be of Counsel, rather against them than for them. But suppose it were otherwise, since no Gentleman can be supposed to be so well acquainted with the Laws, as those who are in daily practice; therefore, I think, it will be extremely proper, if not absolutely necessary, for us to hear Counsel upon the Point I have mentioned, and upon several other Points of Law, that may probably arise in the Course of the Examinations; and as I think a great deal less of our Time will be taken up in hearing the Petitioners by their Counsel, than in hearing them by themselves, I shall be for ordering them to be heard by themselves, or Counsel, and consequently I must be against the Amendment proposed.
Upon a Division, it was carried against hearing by Counsel, 227 against 208.