The History and Proceedings of the House of Commons: Volume 9, 1734-1737. Originally published by Chandler, London, 1742.
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On Monday, May 16th. A Bill entitled, " An Act to disable Alexander Wilson, Esq; from taking, holding, or enjoying any Office or Place of Magistracy in the City of Edinburgh, or elsewhere in Great Britain, and for imprisoning the said Alexander Wilson, and for abolishing the Guard kept up in the said City, commonly called the Town Guard, and for taking away the Gates of the Nether-Bow Part of the said City, and keeping open the same."
James Oglethorpe, Esq;
The Title of the Bill being read,
James Oglethorpe, Esq; opposed the receiving the Bill at all: Because he was of Opinion that 'the House of Lords would refuse to receive from that House any Bill of Pains and Penalties, which might affect any Member of their House: And that if such a Precedent was set, as that a House of Peers for every Offence committed, or supposed to be committed by a Commoner, might send down a Bill of Pains and Penalties to be passed in the House of Commons, the Independency of the Commons must be utterly broken.'
Sir John Barnard.
Sir John Barnard. 'Suppose the Bill which is sent down had enacted, that among other Pains and Penalties the City of Edinburgh should from henceforth cease to be a City or Corporation. Could any Gentleman, after the passing such a Bill, have kept his Seat in this House as Member for that City or Corporation ? Sir, he must have ceased to be a Member, as soon as the Corporation he represented ceased to be a Corporation: And shall we ever receive a Bill from the other House for turning one of our own Members out of Doors? This House ought to shew as much Respect for their Constituents, from whom they derive their Right of sitting here, as they would do to their Representatives themselves. If any Preference is due, it is due to that Body from whom they derive their Right of sitting in this Place; for while they are judging one of their own Members, they are judging of their own Privileges; but while they are judging of their Constituent's Rights or Properties, they are judging of what is not their own, but what they have only in Trust; and of which they therefore ought to be more tender.
Duncan Forbes, Esq.
Duncan Forbes, Esq; (fn. 1) 'It would found very ill, that a British House of Commons, in which there are but Forty five Representatives for Scotland, should receive such a Bill: Edinburgh is now a City of Great Britain, nay, the second City. And I appeal to the Gentlemen who represent the Cities and Boroughs of England, to know in what Manner they would treat a Bill inflicting such Pains and Penalties upon any of the Cities which they represent. They are in Honour obliged to protect the Commons of Scotland as much as the Commons of England; because the Scots trusted to their Honour, when they united with them upon the Terms they did. They are in Prudence obliged to protect the Privileges of every Borough of Scotland as much as the Privileges of any Borough of England; because no Incroach ment can be made, no Injury done to the one, but what may be made a Precedent for doing the same to the other: If they allow the other House to incroach upon the Privileges of the Commons of Scotland, it will be a Precedent for their incroaching upon the Commons of England. If they accept of this Bill, if they give it a Reading, I shall soon expect to see a Bill brought them from the other House, for turning some of their Members out of Doors.'
Sir William Yonge.
Sir William Yonge. 'The other House has a Power of enquiring. When they begun the Exercise of that Power; they found it necessary to go a Step farther, and to punish as well as enquire, which they could do no otherwise than by the Bill now before us. As this is their only Aim, as it is an Aim which cannot but be approved, I hope this House will not be too jealous of its Privileges on such an Occasion; for even tho' it were indisputable that the other House ought not to be allowed to bring in a Bill for inflicting Pains and Penalties upon any City or Borough of Great Britain, yet in a Case where no Incroachment is intended, and which may so greatly contribute to the domestic Peace and Quiet of the Kingdom, it is absolutely necessary for both Houses, not to be over-scrupulous in Point of Privilege.'
Sir Robert Walpole.
Sir Robert Walpole. 'It was very natural for the other House to enter upon this Enquiry, because there is generally a Kind of Cessation of Business in that House, during the first three or four Weeks of the Session, which are generally in the House of Commons taken up in settling the Supplies for the current Services of the Government. I am as jealous of the Rights of this House, as any Gentleman here; but I think too scrupulous a Jealousy may at this Time be attended with the worst of Consequences. As to what my Honourable and Learned Friend behind me mentioned, about the Tenderness we ought to shew to the Corporations and Boroughs we represent, especially those of Scotland; I think, Sir, our going upon this Bill is the greatest Mark of Tenderness we can shew. It is in order to punish, in a more examplary Manner, a Practice, that has been but too much encouraged of late; a Practice, that if not suppressed, must destroy the Right of all Corporations, and perhaps abolish the Privileges of this House, and the very Form of our Constitution. The other House having entered upon this Enquiry, has brought the Bill to such a Forwardness, that perhaps it may come Time enough to prevent the Consequences before it is too late; therefore, I think, we are rather obliged to the Care and Concern they have taken in this Affair, and I hope Gentlemen will not oppose the Bill, without better Reasons than any that have yet appeared.'
Sir William Windham.
Sir William Windham. 'I am very sorry that what the Honourable Gentleman who spoke last has said is but too true. The first Part of our Session is commonly spent in granting Money to the Crown; but formerly it was otherwise; and if this House had taken Example by their Ancestors, instead of voting a Supply the 2d or 3d Day of the Session, they would have voted an Enquiry into those Riots and Tumults, which of late have been so frequent and so general all over the Kingdom; for the People never grow tumultuous without some Cause, and 'tis very probable the late Tumults have proceeded from some Abuses or some Grievances which they ought to enquire into. The best Way of judging of Men's Intentions is by their Actions; and as the Bill brought from the other House is certainly, as we think, an Incroachment upon the Privileges of this House, the surest and safest Way of judging is, to suppose an Incroachment was intended. Incroachments have always been made at the most favourable Junctures; and if ever the other House should endeavour to incroach upon this, they will always take Occasion to do it, with respect to Bills which seem absolutely necessary; so that if we made the Expediency, or even the Necessity of a Bill, a good Reason for submitting to an Incroachment, we should very soon have no Privileges left. As this House is the Grand Inquest of the Nation, it is their proper Business to enquire into all public Abuses, especially where any of their own Members are concerned; and if the other House does upon any Occasion take upon them to enquire into any such public Abuse, they ought to proceed no further; they might then at a Conference communicate to that House the Discoveries they had made, and leave it to that House to proceed by Impeachment, or by a Bill of Pains and Penalties; which the other House might have done in the present Case; and their not having done so seems to shew, they had an Intention to take Advantage of that favourable Opportunity for making a little Incroachment upon a Privilege, which they knew would have otherwise been strenuously contested. Whether or no there is a Necessity for punishing the City, or any of the Magistrates of Edinburgh, cannot appear to us now, and therefore cannot be an Argument of the least Weight in this Debate; but suppose there is such a Necessity, there is no Necessity of the Session's breaking up at a certain Day. We may go upon an Enquiry immediately; the Witnesses are all in Town; these Witnesses may soon be examined; and upon that Examination, we may order a new Bill to be brought in, if we saw Cause; and that new Bill may pass through both Houses long before it will be absolutely necessary to put an End to the Session: Therefore, I see no Inconvenience that can ensue from not receiving the Bill now brought from the other House; and for that Reason cannot agree to its being read a first Time.'
Patrick Lindsay, Esq;
The Bill however was read a first Time, and upon a Motion for reading it a second Time, Patrick Lindsay, Esq; Member for Edinburgh, spoke as follows.
'The Concern which I have in this Bill, as it affects the Rights, the Privileges, and Franchises of the City which I have the Honour to represent in this House, as well as it affects personally him who has now the Honour to be the Chief Magistrate of that City; this Concern, I say, Sir, will (I hope) plead my Excuse to this Honourable House, for presuming to take upon me, Sir, to submit to your Consideration, my Sense of this Bill, and of the Effects of it, should it pass into a Law. Sir, That cruel, barbarous and inhuman Murder, that most outragious and atrocious Riot, which was committed at Edinburgh the 7th of September last, must affect every Person of Humanity with Horror: And as it was, Sir, a trampling upon all Civil Governments, and a bold and manifest Violation of the Laws, and a direct Insult upon the legal Authority, it cannot fail to raise Gentlemen's Indignation, and to rouse the Resentment of every true Briton to do Justice to the Public, by pursuing any Measure that may be most likely to punish so black a Crime, a Crime so dangerous to civil Society, and to bring the execrable and desperate Authors of it to condign Punishment.—But, Sir, I hope Gentlemen's Zeal for Justice will not so far blind their Understanding, as to allow themselves to be diverted from the Pursuit of Justice, and to be misled from the right Scent by falling upon the Innocent, and there to allow the Guilty to escape and to pass unheeded.—By whom, Sir, was this bloody Murder, this outrageous Riot committed? By a Mob, Sir; a Mob composed, as Mobs commonly are, of the lowest Class of the People, by Persons of dissolute and bad Lives, and of worse Manners; Persons who despise the Office of Magistracy, and hate the Persons of Magistrates, because Magistrates punish and controul their Crimes, and restrain them from Acts of Violence, and from committing Disorders; Persons who are prone to do Mischief, and when they can do it with hopes of Impunity, rarely fail to insult and abuse the Persons of Magistrates—And who, Sir, are by this Bill to be punished for this Riot? Those who committed the Insult? No, Sir; by this Bill those who were insulted are to be punished. Is the Insolence of the Multitude to be represt by this Bill? No, Sir; the Hands of the Civil Magistrate are to be weakened by this Bill. In a free Country, Sir, the Civil Magistrate only can suppress and prevent Riots and Disorders: And how? By punishing of Rioters and disorderly Persons. And if the Hands of the Civil Magistrate are not strengthened, the Office of Magistracy must become useless.—Sir, I have observed, since I came last to this Place, that a very odd Notion has prevailed here, and with great Grief and Concern, Sir, I find this Notion to be general, that Persons of all Ranks, (in that Country where that abominable Crime was committed) favour this foul, this black, this most detestable Crime; than which, Sir, nothing is more unjust, nothing more false and untrue. I therefore beg Leave to explain this a little.—The Mobs in that part of the Kingdom, Sir, resemble very much the Mobs here; they are composed here as well as there (and I believe every where) of such Persons as I have just now described to you; but there is one Difference betwixt the Mobs in that Country and your Mobs here, and that is, however wicked the Mobs in that Country may be, yet they are not so abandoned as to do Mischief with their Eyes open. But, Sir, the lowest Class of People in that Country have generally speaking a Turn to Enthusiasm, and so strong is the Influence, such is the Force of Delusion, that they can work themselves up to a firm Persuasion and thorough Belief that any Mischief they are to do is not only lawful but laudable; that it is their Duty to do it, and from a religious Principle, to do it at any risque, even at the risque of their Lives.
'Hence it is, Sir, that Riots and Disorders are less frequent in that Country than here, and when Mobs do rise there, they are more determined, and consequently more dangerous.
'The unthinking Multitude, Sir, are but too much encouraged in this by the Clergy; for, Sir, when the Clergy are like to be defeated or disappointed in any particular View of disposing of any Ecclesiastical Benefice and Preserment as they have a Mind, because the Law stands in their way, they abuse the unwary People, Sir, and spirit them up to despise and disobey the Law, by this dangerous Doctrine, too often inculcated—upon such Occasions, that such a Law is Iniquity—established by Law.
'This dangerous Doctrine, this seditious Practice, in openly and publicly maintaining it, cannot be charged, Sir, upon the Church of Scotland, or upon the Clergy of that Country in general. They, Sir, by much the major Part of them, are good Men as well as good Christians, Men of found Principles in their Lives, and in their Practice, blameless; Men who think, as every Gentleman of this House does, Sir, that the Laws of every Country ought to be obey'd, as the sole and only Rule of Government in every Country; but this seditious Doctrine is preached up by those wild, hot-headed, violent High Church Clergy, who are not to be satisfied with any Power, unless they possess all Power; and by them only. Yes, Sir, I am sorry to say it, we have High-church Presbyterians, who have higher Notions of Clerical Power, than any Protestant Clergy whatever; some there are, Sir, who assert and maintain an absolute Independency on the Civil Power.— Sir, the dangerous Effect of Doctrines of this Kind is, that when Men are taught and brought to believe, that any Law whatever in Iniquity established by Law, and while it remains in Force under the Sanction of the Legislature it may nevertheless be disobey'd, and the Civil Magistrate resisted in the Execution of it, Men of weak Understanding and strong Passions will easily deceive themselves, and look upon every Law that interferes with their Passions to be Iniquity; especially, Sir, if they have, as all weak People commonly have, a good Opinion of themselves and of their own superior Sanctity and Holiness.
'Now, Sir, I must beg Leave to explain the Source of these late Disorders, that have given so much Trouble to the Legislature.
'The pernicious Practice of Smuggling prejudicial to the fair Trader, and so hurtful to the common and general Good of the Nation, has prevailed but too much in that Country, Sir, as well as in this. Whoever, Sir, may be the Importers and Proprietors of Run Goods, it is most certain, that the lowest Class of Men, the Dregs of the People, those Persons who compose Mobs, are the Persons employ'd in the running of these Goods, and they get so much more, Sir, by this illicit Trade, than they can by honest Labour, that they neglect their Labour for the Sake of this vile and destructive Trade.
'As this lowest Herd of Mankind, Sir, have been taught that one Law is Iniquity, they have taught themselves that some other Laws are so too; if one may judge of their Principles by their Practice, all your Revenue Laws stand in an unfavourable Light with them, Sir.'
'Every Gentleman, Sir, has heard of the Execution of that noted Smuggler Andrew Wilson, whence all this Mischief has flowed. That deluded Man, Sir, maintained to the Hour of his Death, that he was most unjustly condemned, and died with great Tranquillity; so firm, so fixed was he in the Belief of his own Innocence; he maintained this, Sir, in a Debate with one of the Rev. Ministers of Edinburgh, and a very able Clergyman he is. When this Minister, Sir, was endeavouring to underceive him, and bring him to a Sense of his Guilt of the Crime for which he was condemned, he admitted that he had taken Money from a Collector of the Revenue by Violence; that he did it because he knew no other way of coming at it; that the Officers of the Revenue had by their Practice taught him this was lawful, for they had often seized and carryed off his Goods by Violence, and so long as they had Goods of his of greater Value in their Hands than all the Money he took from them, they were still in his Debt, and he had done no Wrong.
'I am afraid, Sir, this Martyr to this new heretical Sect of Smuggling was too much favoured by the misled and unwary Multitude; too many of them thought, as he himself did, Sir, that he was unjustly condemned, and every one who firmly believed this would, no doubt, think it his Duty to save and to rescue this innocent Person (as they thought him) from the Rigour of Law; and, Sir, if the Magistrates of Edinburgh had not taken extraordinary Precautions to put this Sentence in Execution, he, this Wilson, Sir, would very probably have been rescued by the Multitude.—But, Sir, when they saw themselves disappointed, no sooner was this Execution over; than they began to wreck their Malice upon that Guard which had, upon many other Occasions as well as that; supprest their Disorders, and restrained their guilty Hands from doing of Mischief, and committing of real not imaginary Iniquity; upon that Guard, Sir, which is to be abolished by this Bill. — Upon this Occasion, Sir, the unhappy Person who then commanded the Guard, did, from an Apprehension I suppose that he might be overpowered by the great Crowds of People then assembled, defend himself and his Men by their Fire Arms, whereby several of the Multitude were killed and wounded: And what were the Effects of this, Sir? — The Persons who were then killed and wounded were of that Class of People who commonly attend such melancholy Spectacles, Sir, that is, of the lowest Class. The Mob, Sir, from that Moment began to murmur, from an Apprehension, that because no Person of Rank and Condition had been killed, therefore would this barbarous Murderer (as they called him) escape from Justice by the Favour of Persons of Condition. And in this, Sir, they were not mistaken, for — No sooner was this unhappy Person condemned by Law, Sir, than Numbers of Persons of Condition set a Petition on foot to intercede with her Majesty (then Guardian of the Realm) for Mercy; they did this, Sir, not so much out of Tenderness to this Man, that they thought his Case hard, as from another Motive, a Motive of a public Nature; and that was, Sir, should this Sentence have taken Effect, the Mob would become more insolent, when they found that the Civil Magistrate, or other Persons acting under his Authority, were in no better Case than they who resisted the Civil Magistrate in the Execution of the Law; but if by this Man's Pardon, if by the Interposition of Mercy from the Crown, they were convinced, that every Person who acted by Law, to put the Laws in Execution, acted safely, and that every Person that acted otherwise did it with a Rope about his Neck, that would effectually suppress the Insolence of the Multitude, and force Obedience to the Law, even from those base Minds who by Force alone are to be driven into a Sense of their Duty.—Who then, Sir, of that Country approves of that wicked Murder and Riot? The Mob only, Sir, by whom it was committed; Persons who have no Property, and therefore are fond of Disorders, because they can lose nothing by Disorders, and if they can escape Corporal Punishment, are often Gamers by public Calamity and Disorder.
'This then, Sir, appears plainly to be a Dispute betwixt the People of Scotland, (by whom, Sir, I mean every Man of Property, every Freeman, every Man who may suffer by the Subversion of the Laws, and by the Loss of Liberty) and whom, Sir? The Canalzie, the Dregs of the People of Scotland, that Class who are anciently call'd by your Law, Villains; that ignorant Herd of Bigots, who are always missed by crafty and ill-designing Clergymen; for Men of Sense and Knowledge, Sir, have a much surer and a better Guide, that is, right Reason, that eternal and unerring Rule.
'Sir, It is a great Misfortune to that Country where this bloody Tragedy was acted, that many Gentlemen who hear me are so much Strangers to it, Strangers to its Laws and Customs, Strangers to the Manners and Tempers of the People, Strangers to these different Ways of thinking of the People of Knowledge and Condition, from the Principles of the inferior Multitude, which I have now, Sir, been endeavouring to explain to you, so far as they relate to the present Case.
'Therefore, Sir, if it is the Sense of the House to proceed upon this Bill, the Consideration of it requires the greater Attention, the Interest of England makes it necessary; 'tis an Affair of the utmost Consequence to the Liberty of the Subject, and as it ought, it will no doubt be treated as such, for the United Kingdom is greatly interested in the Manner of determining of this Bill, as well as in the Fate of it.
'Sir, While the two Nations remained in a State of Independency, those frequent Wars, which are but too common betwixt neighbouring Nations, begot mutual Fears, mutual Jealousies and Distrusts, national Hatred, and national Aversions: But as the Cause of these national Feuds and Enmities most happily ceased by the Union of the Crowns, I hope, Sir, the Effect also ceased with the Cause. — From that happy Period, Sir, both Nations were embark'd upon the same Bottom; the Honour and Interest of both became the common and inseperable Cause of both; the Honour and Interest of one could not be hurt without affecting the other; and I think, Sir, the Subjects of both Nations became very soon sensible of this, that by that happy Accident they were reduced from a State of Enmity to a State of perpetual Friendship; and I think we may observe from Experience, that those national Prejudices and Distrusts began very soon to abate: Even so early, Sir, as the unhappy Civil War in the Reign of King Charles I. which broke out within less than 40 Years after the Union of the Crowns. May we not observe, Sir, the Subjects of both Nations, who were of the same Sentiments and Opinions with regard to the Causes of that unhappy War, making and entering into Alliances and Confederacies with one another against the Subjects of both Nations who were of contrary Sentiments? Was not that War carried on by Scotsmen and Englishmen against Englishmen and Scotsmen without the least national Distinction, or national Distrust? They were even at that time, Sir, perfectly sensible, that the Liberties of any one of the Nations could not be subverted without destroying the Liberties of the whole, and that the whole could not be preserved unless the Liberty of every Part of the whole was preserved and secured upon the same Footing.
'The same Thing appeared, Sir, at the late happy Revolution: Were not the Subjects of both Nations equally forward, equally zealous in the Cause of Liberty, a Cause inseparably common to both? And did not a few of both Nations, without Distinction, adhere to what they called the Prerogative of the Crown, and the indefeasible Right of the unhappy and unfortunate Prince then upon the Throne? But now, Sir, we are in a Situation very different from that; we are now, Sir, by an incorporating Union become one and the same People, bound and cemented together by all the Ties that bind Individuals in civil Society.
'The representative Body of the People of Scotland did, upon that Occasion, Sir, express an absolute Trust and Confidence in this Nation of England; no Security, no Guarantee whatever, was on their Part required for the Performance of the several Articles and Conditions stipulated by that Treaty in our Favour, other than the Faith of a British Parliament. In this, Sir, they acted most wisely; for what Security, what Force, what Power, what Constitution could have been contriv'd, that could have proved so absolute, so real, and so effectual a Security, as the Faith, the Justice, the Honour, the Candour of an English Parliament; I say an English Parliament, Sir; for in a Parliament of GreatBritain, the Representatives of that Part of the United Kingdoms do not make up the tenth Part of either House.
'We had, Sir, the Experience of Ages to induce us to follow so wise a Course; the Legislature of England had always acted wisely, never like arbitrary Governments from Caprice or Humour, but had always steadily pursued the real Interests of the Nation of England with great Judgment, great Sagacity and Forecast; and we, Sir, were sensible that our Interests were the same with yours, that so long as you minded your own Interests, ours must be safe in your Hands. Then, Sir, however weak and ignorant People may think or act, People who are weak enough to be misled by national Prejudices, yet the Wisdom of the Nation will always act uniformly, always act wisely.'
'I know, Sir, 'tis the Way of speaking without Doors among such weak and foolish People, that the Legislature may be unconcerned and indifferent as to any public Measure as to Scotland; that 'tis a Matter of no Moment how, or in what Manner any public Law affects that Country; whether these People are dissatisfied or not, should they be ever so much displeased, ever so much angry, it is of no Consequence; should they even take it into their Heads to mutiny and to rise in Rebellion, it signifies nothing, for we have always as many Troops quartered amongst them as are sufficient to conquer them.
'This is easily said, Sir, and I admit it might be as easily done too; but because such a Thing might be done, would such a Measure be just, would it be a wise Measure? Sir, so foolish and so foul a Deed as this would be falsely called Conquest; it would be an Act of Treachery, it would be Treason, Sir, Treason of the blackest Kind! Treason against the People! If any Person of Condition was to talk thus, should the greatest Person of the Nation infinuate such a Thing by way of Advice', this House would take Notice of it, Sir; this House would impeach such a Person as an Enemy to the Public, as a most dangerous public Enemy; and give me Leave to say, Sir, that if ever the Legislature should be so blind to its own Interest, so false to the Trust reposed in them by the People, as to allow such a Use to made as this of those Forces, which are maintained by the People, for the Preservation of their Liberty, the same Number that could conquer Scotland, could with much greater Facility conquer England.
'Such Conquests as these, Sir, are easily made; very little Skill would be required in the General that would make so glorious a Conquest; Treachery, Treachery alone is the only Qualification necessary for the Executioner of such a Project: But would the Conquest be as easily maintained as made? No, Sir.
'It is a common Saying, Sir, That Oppression makes all Men of one Mind. In that Event, Sir, ten Times the Number of Forces that made this Conquest, and perhaps made it with Ease too, would prove too few to maintain it.
'Every Gentleman, who is the least acquainted with History, knows what Miracles Oppression hath work'd upon the Oppressed. Do not the States of Holland owe their Being to Oppression? Do not the Swiss Cantons owe their Freedom and Independency to Oppression? Does not Portugal owe its Independency to the indiscreet and oppressive Measures of the Court of Spain? But I beg Leave, Sir, to bring one Instance nearer home.
'The Cambrian Gauls were reduced by force of Arms. As the Conquest of this powerful Country was once determined by the Fate of one Battle at Hastings, so they, Sir, after the Loss of a Battle, were obliged (as you did) to submit to Necessity. This Conquest was easily made; but was it as easily maintained? No, Sir; every one knows what Blood and Treasure it cost you to keep this Province in Subjection; and so sensible were your Ancestors of this, that after the Experience of near three Centuries, Sir, such was their Wisdom, that they of their own accord, and a wise Measure it was, Sir! I say, of their own accord, made that brave and invincible People a free People; and how, Sir? By admitting them to share as the Legislature in this House, by making them one and the same People nationally with yourselves, and removing, as far in you lay, all National Distinctions, that there should be no more Difference betwixt an English and a Welsh Man than there now is betwixt an antient Briton, a Roman, a Saxon, an Angle, a Jute, a Dane, or a Norman.
'Is it then to be imagined, Sir, that the Legislature of Great Britain could be capable of such Indiscretion, as to destroy, or in the least to impair and abate, that Harmony between the two United Nations, upon which the Happiness of both so much depends? That you, Sir, could by any unequal Dealing, or partial Procedure, force that antient and invincible Nation, that free and independent Nation, who, of their own accord, freely, without the least Restraint or Necessity, trusted themselves absolutely to your Faith, after both Nations had from an Experience of 100 Years, from a just Sense of their true and real Interests, come to an absolute and determined Resolution to become absolutely and entirely one and the same People! That you, Sir, who are the sole and only Guarantees of this Treaty, should force this Nation from this State of Friendship, a Friendship secured by every Tye that can bind Friends! That you, I say, Sir, should force them back again into a State of Enmity! That you should, contrary to all common Sense and common Honesty, betray this great Trust, and by Acts of Severity and Oppression, drive this Nation into a State of Slavery! This, Sir, is absolutely impossible so long as Mankind are possest of Common Sense in the smallest Degree; for no Argument is necessary, Sir, to convince you, that if ever any Part, especially so great and considerable a Part of this United Kingdom, is reduced to a State of Slavery, the whole must soon undergo the same Fate. We are now too closely united, not only bound but cemented together, by too many and too strong Tyes to be ever separated, without tearing out the Vitals of the United Kingdom, and rending it into Pieces. In all Events, both must share the same Fate, both must be free, or both must be Slaves. A free State, Sir, knows no Master but the Law; Freemen are governed by Law, and by Law only; Slaves are governed not by Law but by Arbitrary Rule, by Acts of Violence, and by Military Force; and whoever is Master of that Force, must be Master of all. If any part of the United Kingdom must submit to Slavery, all and every part must submit to Slavery, for no Proposition is more obvious and self-evident than this, that in a National Sense, Scotland is as much a Part of England as the Counties of Kent or Cornwall are; and this County of Middlesex, and every Part of England is as much a Part of Scotland as the County of Edinburgh is: That the Interests of all and of every Part of Great Britain are so absolutely and so entirely the same, that no one Part can be hurt without affecting the whole, no more than the natural Body can be hurt or maim'd in any of its Members without feeling Pain; and therefore, Sir, every Part of the Whole must be equally the Care of the Legislature: And if this be so — then, Sir, this Bill must stand or fall by its own Merits. It will be try'd by this House, Sir, with the utmost Impartiality, and with the strictest Regard to Justice.—It will be considered by this House, Sir, as if this unhappy Disorder had been committed in the City of London, in York, Bristol, or any other Corporation in England; and I submit it to Gentlemen's Consideration, how they, especially they who represent Cities and Burghs, how they, I say, like Bills of this kind. —Because a Disorder and a Crime has been committed, and because the Criminals have escaped and fled from Justice, therefore the Magistrates of that City or Burgh are to be punished by Bill, and the Corporation itself suffer in its Rights and Franchises, and be deprived of its Privileges. I have already hinted at the first Attempt that was made upon the Liberties of this Island: Gentlemen will observe where that first Attempt was made, and where it pointed, and they may thank their Ancestors of that Generation, who had Sagacity and Forecast enough to foresee where it must end, and foresaw it before it was too late. Principiis obsta is a good Maxim. — I am not Lawyer enough, Sir, to form any Opinion of Bills of this Nature, but one part of the Procedure in another Place, in order to found this Bill, appears to me to be somewhat dangerous to the Privileges of the Commons of Great Britain; and that is, Sir, — the Magistrates of Edinburgh are ordered to attend at the Bar of another House on a certain Day, they appear, but we are not told whether they are ordered to attend as Evidences to give Information, or as Persons accused of any thing. No, Sir; they are directly put upon Oath; and severally examined, direct Questions put, and direct and categorical Answers insisted upon, under no less Penalty than Contempt. They are not told, Sir, your Answer to this or to that Question may affect yourself penalty, and therefore you are at Freedom to answer it or not; and nevertheless, Sir, upon those Answers is the Bill founded.—I say, Sir, I shall not pretend to form any Opinion of Bills of this kind. In my present way of thinking, Sir, every State must have a Power to save itself, that the whole Legislature may use any Method whatever to save the Public; but I have always understood that Proceedings by Bills, such as this, were always consider'd as Remedies in Cases of extreme Necessity, and in such only. Therefore the first Question before you, Sir, is, Whether this be a Case of that kind.— I am sensible, Sir, I cannot now enter upon the Merits of this Bill, but I hope it will not be improper, if I explain to the House, Sir, the Occasion of this Bill.—The Report, Sir, that the Mob would make an Attempt to commit this Crime was pretty universal, and that this Attempt was to be made upon the Day appointed for this unhappy Man's Execution, unless he was executed at the usual Hour according to his Sentence. Agreeable to this Intelligence the Magistrates of Edinburgh used Precautions, and proper Precautions they were, Sir, to prevent this Mischief; but the Mob, Sir, they were likewise sensible that their wicked Purpose might reach the Ears of the Magistrates, and if it did, Sir, were likewise sensible, from fatal and dear-bought Experience, that the Magistrates of Edinburgh had always, and upon all former Occasions, by the means of this City Guard, Sir, supprest Mobs and Tumults, and punished the Authors and Ringleaders of them with great Severity. By all that can be learned, Sir, (and great Pains have been taken to make Discovery) I say, Sir, it appears by the Discoveries that have been made, that the Mob despaired of Success, and therefore, Sir, a Number of the most determined entered into a Conspiracy, and bound themselves by a solemn Oath to execute any Purpose that should be agreed on by the Majority, and to lose their Lives rather than to discover this Secret, or to discover one another; and if Gentlemen knew how strong and sacred a Tye an Oath is with these People, they would not be surprized that this Secret was so well kept.—There is no direct Proof of this, Sir, but the Presumption from several Circumstances is very strong, and the Event makes it highly probable. For this Attempt to surprize and disarm the City Guard, upon which the Success of their whole Scheme depended, was executed in a Moment, upon a Signal, and at a Time, when no Magistrate or Citizen of Edinburgh had the least Suspicion of it, nor indeed any other Person, unless those who were in the Plot: This, Sir, plainly appears to have been the Case; and if it is so, where is the Guilt of the Magistrates or Citizens of Edinburgh? — All the World heard, Sir, of Mischiefs that were threatened by the Mob here, when the Gin-Act was to take place, and agreeable to these Reports, Precautions were taken to prevent these Riots and Disorders that were threatened; but when, Sir? upon Michaelmas-Eve only, and not before. Now, Sir, suppose a Number of this Mob had engaged themselves in a Plot, and kept their Secret, and had the Night before these Precautions were taken committed any outrageous and criminal Act of Violence, and had under the Favour of the Night and other Disguises of Apparel all of them made their Escape, would it have been thought necessary to have brought in a Bill to punish the Magistrates and the Cities of London and Westminster? Sir, I think this is precisely the Case, and I therefore submit it to the House, Sir, if there is the least Foundation for this Bill? Should this Bill, Sir, pass into a Law, the Office of Civil Magistracy would become so dangerous that no wise Man, no prudent Man, would ever accept of it; and if the Magistrates of this City have been, at this Period, unable to suppress a Tumult, when they had Power to support their Authority, how can they preserve the Peace of this populous City, when that Power is taken from them?— This City Guard, Sir, is a Watch, a Watch by Day as well as by Night; it is a Creature of the Civil Magistrate, under his Direction only; it is subject to no Mutiny Act, but governed by the same Law, that other Subjects are, and if it should be abolished, what would be the Consequence? If this Bill should pass into a Law, this ancient City, this Metropolis of one of the United Kingdoms, must either be reduced to a State of Anarchy and Confusion, to be governed by the licentious and unruly Multitude, or, which is worse, Sir, it must submit to a Military Government, and so by a Side-Wind, and without any Design, you shall in consequence of this Bill introduce a Practice that must very soon put an End to all Liberty.— For, Sir, when you cannot execute the Law, nor preserve the Peace without Military Force, when those who have the Direction of that Force shall become sensible that they, and they alone, can execute your Laws, they will soon become the Makers as well as the Executioners of your Laws, as once happened to this Nation already,—when your own Army under that crafty Traitor Cromwell usurped the whole Power of the Legislature, and of the Civil Magistrate. For these Reasons, Sir, I hope you will proceed no further upon this Bill.'
Sir John Barnard.
These and the foregoing Reasons had such Weight with the House, that tho' the Bill was ordered a second Reading, the House agreed upon a Motion made by Sir John Barnard.
'That the Lords be desired, that the Grounds upon which the said Bill proceeded in their House may be communicated to the House of Commons at a Conference.'
May 18. The Lords at a Conference delivered to the Managers for the House of Commons, an Authentic Extract of the Proceedings in the Trial of Captain John Porteous, wherein was contained the Verdict against the said Captain Porteous, the Sentence of the Lords of the Justiciary of Scotland against him, and the Reprieve of the said Captain Porteous granted by her Majesty as Guardian of the Realm. As also
A Letter from Alexander Wilson, Provost of Edinburgh, to Major General Moyle, dated Edinburgh, April 13, 1736. Which Authentic Extract and Letter were brought up to the Table, and the Report being read, it was ordered,
'That Mr. Attorney General, and Mr. Sollicitor General, take Care that the Evidence for the ingrossed Bill from the Lords (entitled as before mentioned) be ready to be produced to the House upon that Day Sevennight; and likewise, that Mr. Attorney General appoint Counsel learned in the Law, to produce and manage the Evidence at the Bar of the House upon that Day Sevennight, to make good the Allegation of the said Bill; and that the following Persons attend the House on that Day Sevennight, viz. (fn. 2) Major General Moyle. (fn. 3) Colonel Duroure. (fn. 4) Major Poole; Captain Bendish; Lieutenant Ashton. (fn. 5) Major Roberton. (fn. 6) John Din. (fn. 7) Mr. John Bailey. (fn. 8) Mr. Alexander Nisbet. (fn. 9) Mr. Robert Stewart. (fn. 10) Mr. George Irvine; Mr. Thomas Young. (fn. 11) Mr. Roderie Brown. (fn. 12) Mr. Christopher Chissolm.
On Friday the 20th, was presented to the House, and read a Petition of Alexander. Wilson, Esq; Lord Provost of the City of Edinburgh, averring his intire Innocence of the several Matters alledged against him in the Preamble of a Bill, then depending in that House, (entitled, as before mentioned) and therefore praying that he might be heard by his Counsel against the said Bill, at the second Reading thereof, which was accordingly ordered. And on the Tuesday following, was presented to the House, and read, A Petition of the Magistrates and Town Council of the City of Edinburgh, in the Name of themselves, and Community of the same, setting forth 'That the Petitioners apprehended, that if the Bill then depending in that House (entitled, as before mentioned) should pass into a Law, it would greatly affect, and tend to destroy, the Rights, Franchises, Privileges, and Liberties of the said City of Edinburgh; and therefore praying that the Premises might be taken into Consideration, and that the Petitioners might be heard by their Counsel against such Parts of the said Bill, as affected the said City. 'Which was accordingly ordered. And then Captain Lind and Mr. James Allen were ordered to attend that House next Morning, when upon reading the Order of the Day, for that Bill's being read a second Time, it was proposed to put off the second Reading of it for a Month. But a Motion being made for reading it a second Time on that Day Se'nnight, after some Debate the Question was put upon the Motion for reading it a second Time on that Day Se'nnight, which upon a Division was carried in the Affirmative by 140 to 99; after which the several Persons who were ordered to attend on that Day, were ordered to attend on that Day Se'nnight.
Accordingly, on Wednesday, June 1, the Order of the Day being read, the Counsel for and against the Bill were called in, and the Bill being read a second Time, the Hearing of Counsel, and Examination of Witnesses began, and was continued all that Day, all Thursday, Friday, Monday, Tuesday and Wednesday following. And,
Mr. Lind, Captain of the City Guard, the Night of the Riot, declared, 'That on Friday before he waited on the Provost, and finding him in Company with Mr. Lindsay, Member for the City, and several other Magistrates, he called him aside, and acquainted him with the Report; who desired the said Captain Lind, to repeat the same Things before the Company, which he did, and they were all of Opinion there was no Foundation for the Report; however, desired him to enquire into the Grounds of it: That he (Captain Lind) was out of Town till the Monday Evening, and after he came to Town heard the Report again; and repaired to Muirhead's Coffee-House, to talk with the Provost, and sending his Name in, had for Answer, That the Provost was busy, but that he would be in the Council Chamber about four o'Clock; when he accordingly went to receive his Orders for next Day, but had none for preventing the Riot.'
One Din, and one Baily, were the only Witnesses who declared 'that they had heard such a Report, and that they believed it long before the Riot.'
Bailey being examined about a Conversation he had with Din on the Monday, declared 'that Din spoke to him of it as a foolish Story, and said that he himself did not believe it.'
Sir James Campbell, Mr. Hamilton, and Mr. Lindsay, Members of the House, declared, 'That the present Magistracy could not enter upon their Offices till he (Din) was removed, on account of the Infamy of his Character.'
The Evidence against the Bill endeavoured to prove, 'That altho' the Report went of such a Design for some Time before, yet there was nobody believed it: That the Day given out was Wednesday, the Day on which Porteous was to have been executed: That the Lord Provost had thereupon determined, in Council, that the whole three Companies of the Town Guard should mount upon that Day, and that both he and the other Magistrate, with the Members of the Town Council, should be ready to attend with the Badges of their respective Offices in quelling the Mob, should any happen.'
It was on the other Side proved 'that there was no Order given for that Purpose to the Captain of the Guard upon the Tuesday; neither was there any Ammunition distributed, which Precautions had been used at the Time of Wilson's Execution; and that it appeared there was not a Flask of Powder, nor a Pound of Shot amongst all the Town Guard. To this it was answered, that if the Provost had made any such Preparations before the Riot, it would have been the readiest Way to have created one; that if the Guard wanted Ammunition, it was their Captain's Fault, because he always, when his Men wanted Ammunition, got an Order from the Treasurer, empowering the Store-keeper to deliver out what was necessary for that Purpose.' Young, the Treasurer's, and Hislop, the Store-keeper's Evidence confirmed this.
It was then objected to the Provost, 'That there were two Ways, by which Porteous might have been secured from the Mob. The first was, to have sent him to the Castle. The other, that he might have been sent to the Cannongate Tolbooth. In Answer to this it was said, that the Sentence pronounced on Porteous by the Lords Justuciary run, 'That he should be sent back to the Tolbooth of Edinburgh, there to remain till the Execution of the Sentence'; and that it was not in the Provost's Power to have sent him to the Castle, there being no Instance of such a Power's having been exerted since the Union, and that even before the Union, it could only have been done by a Warrant from the Privy Council of Scotland; and as for sending him to the Cannongate, he had as little Power, because the Cannongate was a Regality, and governed by its own Magistrates.'
A Scotish Clergyman, Mr. Yates, declared, 'That being appointed to preach in the Church where Porteous was allowed to hear a Sermon on the Sunday before his Murder, he afterwards waited on Porteous, and took occasion to acquaint him with the Report he had heard, desiring him at the same Time to take Care whom he admitted into his Room.' Mr. Yates added, 'That Porteous slighted his Imformation, and said, Were be once at Liberty, be was so little apprehensive of the People, that be would not fear to walk at the Cross of Edinburgh, with only his Cane in his Hand as usual.
But the most material Evidence against the Provost, was the aforesaid Bailey, who insisted that he heard it in every Company, that the Design was to be put in Execution on the Tuesday, and that he drank with several who had openly approved of it. To which it was answered, That if Bailey kept such Company, there was little Stress to be laid on his Evidence; especially as he did not pretend to affirm that he had ever acquainted the Provost either with the Report, or the Person's Name who approved the Design.
As to what passed during the Time of the Riot, Captain Lind said, 'That being informed that the Mob was gathering, he went to Clark's Tavern; where the Provost was drinking with Mr. Bur, and other Officers of his Majesty's Ship the Dread nought, then stationed in the Road of Leith, and upon acquainting him with the Danger, the Provost desired him to go immediately back, and draw out his Men, and that he would instantly follow him, and put himself at the Head of the Guard to face the Mob. That he accordingly went to the Guard, but found that the Mob was already in Possession of the Guard-house, having disarmed them, and that they were distributing the Arms of the Guard out at the Window; whereupon they instantly returned, and met the Provost coming towards the Guard. That they immediately resolved to send Mr. Lindsay to General Moyle, who went accordingly: That they marched again out of the Tavern, to which they were obliged to retire, to quel the Mob; and after a fruitless Attack upon the Mob, in which some of the Provost's Company were wounded, they were beat back: He likewise said, there were but ten or twelve Men, besides the Serjeant, Corporal and Drummer, upon Guard that Night, there being eight or nine in Prison on account of Wilson's Execution, and as many absent either with or without Leave. That when he appeared first to the Mob, they desired him to be gone, for they had nothing to say to him.'
One Hunter declared in a very distinct Manner, 'That when the Mob began to gather at the Nether-Bow, he was coming by the Guard, and told the Serjeant, or the Sentry, The Mob was gathered, and seemed resolved to have their Will, and bid them take Care of themselves. That Captain Lind, in the mean Time, came down from the Provost, and that he neither heard nor saw him give any Orders to the Guard, only when he saw the Mob gathered towards the Head of Black-friar Wind, he clapt his Hand to his Sword, and cry'd, God's Mercy, What's that? And away he run as fast as his Feet could carry him.'
Sutherland, the Serjeant, said, 'That when the Captain was gone, a Fellow with a blue Cap came up and asked the Sentry what it was o'Clock? This it seems was the Signal agreed on by the Conspirators; for in a Trice the same Fellow, backed by ten or twelve more, beat the Sentry on his Back, rushed in, and made themselves Masters of the Guard and their Arms, being followed by many more. However, it appears by Lind's Evidence, that they were moderate enough in the Use of Power, at least at that Juncture; for when he came, they very civilly desired him to be gone, for they wanted nothing with him, and warned him of his Danger if he offered to resist.
Sutherland, the Serjeant, agreed with Hunter in the main, only that Hunter's Words to the Sentry were, 'The Mob is up, I advise you to give them good Words, for they will have their Will. He said, that indeed Captain Lind desired him to take Care of the Guard; but that availed little, for not one of the Soldiers would have minded him; nay, they were so intimidated by what had happened to those under Porteous's Command, that he believed, except himself, scarce nay of them would have obey'd the Captain himself had he staid. Yet all agreed, that had the Captain been present and assembled all the Soldiers, who for the most Part lived within a Stone's-throw of the Guard-house, they might have easily prevented the Mob's taking Possession of the Guard-house. The Captain said in his Defence, that he had Orders from the Provost to return the first Time, that he thought no Messenger so proper as himself.'
It was proved by the Evidence of (fn. 13) Mr. Baird, and several others, that the Magistrates endeavour'd to raise the Train'd Bands, or Militia of the City; for which Purpose they dispatch'd one Haliburton their Commandant, to Mr. Rollo, at whose House were the Books, which contained the Names and Places of Abode of every Captain of a Company; but when he came there he was denied Access by Mr. Rollo's Wife, who desir'd him to be gone. They then propos'd to ring the alarm Bell, but found the Mob had taken the Precaution to secure the Tower in which it hangs.
Hislop the Store-keeper and several others prov'd, 'that the Magistrates next sent to the Magazine for Arms, and that the Mob had likewise secured that.'
'It had been much insisted upon by the Counsel for the Bill, that the Provost ought to have put a Guard of Men in the Justiciary or Tolbooth-Room, which are it seems but a short Distance from one another, but it appeared by all the Evidence that in the Situation Affairs were then in it was quite impracticable.
Walker, the Town Officer, whom the Mob had so pelted that he was oblig'd to through off his Livery-Coat, declar'd, 'he was by when they murder'd him, and that one more forward than the rest was check'd by the others and desired to wait for Orders; that he thereupon quitted the end of the Rope, which by this Time, being about Porteous's Neck, he was ready to have hoisted up, and went about to another, who very composedly gave him Orders, and that he return'd and drew the Rope up, which hang'd Porteous.
It farther appeared that the Magistrates were all this Time getting what Information they could by sending People who might mix in the Mob, and endeavour to know some of their Faces, but all in vain; only one Man return'd, who said he knew one Person there. The Magistrates desir'd him to name him, which it seems he did, and was desir'd to be in Readiness to give in what Evidence he could against him, when call'd upon.
Mr. Lindsay said, 'That he return'd about five in the Morning, and with several who had been with the Provost all Night, went to the Grass-Market where the Body of Porteous yet hung, and several People, to the Number of twenty or thirty as they thought in a Body, standing about: Most of the Evidence seem'd to think those were some of the Rioters, and said, they advis'd them to depart. One was seiz'd upon, but besides that they could make nothing of him; they had no Prison in which they could confine him; so thought it the most prudent Method to dismiss him: For being but a few of themselves, and the Mob seeming resolute, they had no Reason to doubt but they would rescue him; and perhaps, as they had committed such Outrages already, would not stick a greater. The King's Council laid great hold of this Circumstance to prove the Negligence both of the Provost and of the Town, but it was observ'd by Mr. Murray, Counsel for the Provost, that he was not then present, consequently admitting it to be a Neglect, not answerable for it.
Mr. Lindsay farther declar'd, 'That when he return'd from Major-General Moyle's, the Mob was pouring in vast Shoals out of the Town into the Country, and that he did not remember any one Face of the many hundreds he met with, tho' he had liv'd and born the highest Offices of the City for several Years.' Another of the Witnesses declar'd, 'That being at Dalkeith, a Village about five Miles from Edinburgh, 10 or 12 Days before the Riot, he there heard a Report that a Conspiracy to murder Porteous, if repreiv'd, was form'd by the Friends of one Ballantine, a Youth of that Town, who went thence to see Wilson's Execution, and was one of them killed by Porteous, but that no Body believ'd it.
An Act made in the 9th of Queen Mary of Scotland, Anno, 1563, by which it was enacted that all Citizens who assembled to suppress any Riot within the Town of Edinburgh, without Authority from the Provost, incurr'd the Pains of Death, was produced and admitted an Evidence. Another Act of James II. of Scotland, Anno 1451, by which no Corporation was lyable to Punishment; for the Provost or any of the Magistrates Fault was likewise admitted an Evidence. The Articles of the Union were likewise insisted on, by which the Privileges of the Boroughs are to remain inviolable; and Mr. Hamilton, Council for the Town, offer'd in Evidence an Extract of the Minutes and Debates of the Session of Parliament in Scotland, in which the Articles anent the Privileges of Royal Boroughs is settled, whereby it appears that upon a Motion made to submit them to the Alterations of a British Parliament, a Debate arose, and it was resolv'd in the Negative, but this was refus'd as Evidence.
It was prov'd against the City that Porteous was insulted, going to his Trial, by the Mob: This was confirm'd by the Testimony of my Lord Advocate, who said he believ'd, that had it not been for the Guard he would have been torn in Pieces between the Tolbooth and the Justiciary Room, tho' not forty Paces distance from one another. The Fact was admitted, but Evidence was given that the Mob, who insulted Porteous, had no Interest in the Corporation who was to suffer by the present Bill, being either the lowest Dregs of the Inhabitants or People from the Country whose Relations had been kill'd on the Day of Wilson's Execution. It was likewise prov'd that almost all they who were kill'd were People from the Country.
Mr. Lindsay, Mr. Young, and several more were examined to prove the Usefulness of the Town guard, particularly in two Respects, viz. That of extinguishing Fires and quelling former Mobs. It was plainly made out, that in a City so populous, and so close built, where 40 or 50 Families live under one Roof as in Edinburgh, it would be impossible to quench Fires, or to preserve the Goods during Fires without such an armed Force.
My Lord Advocate, and Patrick Lindsay, were asked, when upon Examination, whether, if the Town-guard had been under Arms and not surprized, they did believe the Guard would have been able to have quell'd the Mob; they answer'd they did, and most of the Evidence declar'd, that they believ'd, had the Guard been properly arm'd and commanded, the Rioters would not have attempted what they did.
As to what related to the taking away the Nether-BowGate, it was prov'd unanimously that the said Gate was of absolute Consequence to collecting the City Revenue, and that it prevented Smuggling. One of the honourable Gentlemen abovementioned said, that he did not think its being demolish'd would answer the Intentions of the Bill, because it was easy for a small Body to defend the Pass, where it was built against a much larger, even tho' the Gate was open. Several Evidences were produced, particularly the Act of Parliament by which the City collected two Pennys Scots, upon every Scots Pint of Ale vended within the Town, to prove the Loyalty of the Citizens on former Occasions, especially in the Year 1715, when they rais'd some Companies, and by their Zeal and Conduct prevented the surprizing the Castle by the Rebels.
Mr. Irvine, the Town Clerk, said, they had during that Period, and upon other Occasions, manifested their Loyalty much to the Prejudice of their Revenue, which is scarce able to defray the necessary Expence of their Town.
Mr. Young declar'd, that he found a Bond for some hundreds of Scots Marks, granted by the City of Edinburgh to one Wightman, who was obliged to advance that Money for the Payment of the Minister's Salary, the Revenue of the Town having been so exhausted; and all agreed in its having the most sincere Attachment to the Protestant Succession in the present Royal Family.
'We have given the Sum of this Examination, because without that the Extracts from the following Speeches would not be intelligible. The hearing of Counsel for and against the Bill being ended, and the Counsel withdrawn, Mr. Speaker open'd the Bill, whereupon a Motion was made by Mr. Attorney General for its being committed, in which he was seconded by Mr. Solicitor General, but it being late, the Consideration of the said Motion was adjourn'd till next Morning, being
June the 9th, when the said Motion was reassum'd; upon which a long Debate arose, of which we shall give Extracts.
Mr. Attorney General.
Mr. Attorney General.
'The Bill now before us, I will venture to say is a Bill that at this Juncture must greatly contribute to the Peace and Tranquillity of this Nation. I am sorry to say it, but it is too visible that the Spirit of Dissaffection and Riot seems to have been gone abroad; and if a timely and an effectual Stop is not put to it by a vigorous Interposition of the Legislature, no Gentleman can take it upon him to say where it may stop It has in the Chief City of our Part of the United Kingdom already left but too melancholy Proofs of its fatal Tendency; and how soon it may communicate itself to the other I tremble to imagine.
'The other House, Sir, by the seasonable Enquiry has, already set us the Example, in what Manner we ought to treat, and in what Manner we ought to punish such unheardof Insolence and Barbarity, as the Action which gave Rise to this Bill. I hope, Sir, we never shall be upbraided with being cold in seconding their Zeal; I hope, Sir, that it never shall be laid to the Charge of a British House of Commons, that it has been remiss in punishing an audacious Insult upon all Law and Majesty, while the House of Peers has appeared zealous and forward in vindicating both.
'Tis true the Charge against the Provost and Citizens of Edinburgh consists in their neglecting to prevent the Tumult before it happened; in their neglecting to suppress it, or take proper Measures for that Purpose after it had happen'd, and in their neglecting to discover, apprehend, and secure those who were guilty of that audacious Riot and cruel Murder. But this Charge, which is the Foundation of the Bill, is not to be consider'd as Negligence only; for he who does not prevent a Crime which he might and ought to have prevented, has always in Law been looked upon as some way guilty of that very Crime, therefore if it should appear that the Magistrates and Citizens of Edinburgh might and ought to have prevented this Tumult, or rather Insurrection, or that they might and ought to have suppressed it, or that they might and ought to have discover'd, apprehended, and secur'd the Rioters and Murderers. If it should appear that they neglected any of those Measures which were obvious for accomplishing either of those Ends, the Neglect must then be look'd on as a sort of wilful Neglect, and consequently they must be look'd on as guilty in some Measure of all those Crimes which were committed. And so every Gentleman who considers their Case in this Light, the Punishment propos'd by this Bill must appear merciful as well as mild.'
Mr. Solicitor General.
Mr. Solicitor General set out with the following remarkable Introduction.
'I have the Pleasure to observe that every one who has Occasion to speak upon this Head, expresses the utmost Detestation for the Actors of what was not only an Insult upon Majesty but an open Rebellion against Justice, nay, against Mercy itself. It has, I think, been universally allow'd, that it is out of the Reach of Common Law, to punish the Neglect of Duty in the Provost and Citizens of Edinburgh, it being attended with some peculiar Circumstances; and as I believe every Gentleman of this House is of Opinion, that such a Neglect ought to be punished, I may venture to affirm, that there was no other Method of doing it, but in the Method that has been taken. The Objection that seems to have the greatest Weight as to this Method is the Hardship of a Man's suffering by an Act ex post facto. But the supposing any such Hardship is to question the Justice and Wisdom of former Parliaments, who have ever proceeded in this Manner upon Misdemeanors which were out of the Reach of the common Forms of Law. Great Pains have been taken to find a Difference betwixt the Misdemeanors for which other Cities were punished by this House, and the Behaviour of the City of Edinburgh, in the late Riot. But, Sir, tho' two Cases of this Nature cannot be parallel to each other, in every Circumstance, every Case of a City losing its Privileges by the Censure of Parliament, amounts to a Proof that there have been Precedents of this Nature, 8 or 9 of which have been produc'd by the Gentleman who spoke against the Bill. I am far from believing that the Provost and Magistrates of Edinburgh were actually aiding to the Rioters when the unfortunate Porteous was murdered; for if they had, the Punishment would have been much more severe than what is imply'd in the present Bill. And to shew that I am willing to allow all that can reasonably be expected in favour of the Lord Provost and City of Edinburgh, I shall premise two or three Things: The first is, that I lay no Stress on the Circumstances preceding the Murder of Porteous, nor do I think that the Town of Edinburgh shew'd any personal Rancour to the unfortunate Man in prosecuting him at their Expences. It was no more, Sir, than what their Duty requir'd of them, as he was a Servant of their own, and the Crime he committed was done while he was cloathed with their Authority, and in Effect committed against them. Nor am I, Sir, of Opinion, that they discover'd any Malice, but rather Favour in taking away his Pension, and leaving him half a Guinea a Week for his Subsistence while in Prison, since it comes out in Evidence that they did not put it in their own Pocket but gave it to the other two Captains who perform'd his Duty, nor could the Magistrates have been blam'd, had they depriv'd him of the whole. I farther admit, that the Provost behav'd both circumspectly and impartial, by leaving him to the Judgment of another Court, since by his own Authority he might have try'd him and condemned him in his own.'
We have thought it proper to give this remarkable Introduction in order to shew the Candour of the Gentlemen who were for the Bill. Mr. Solicitor then took a View of the Provost's Conduct in these three different Periods of Time, viz. before, during, and after the Murder of Porteous; and endeavour'd from a Deduction of Circumstances to prove that he had been Guilty of great Neglect, first, in not securing the Prisoner Porteous in the Castle of Edinburgh, upon the first Surmise of the Conspirators Intentions; secondly, that he had not acted with that Vigour which he ought during the Time of the Riot.
He then proceeded to consider the Case of the City of Edinburgh as affected by the Bill, and observed, it was highly improbable that the Citizens were innocent, and that there being no positive Proof of a Citizen of Edinburgh being concerned in the Riot was owing to a Confederacy among themselves. As to the Hardship of taking their Watch from them, they had enjoy'd that Privilege in its present Form only since the Revolution, and they might return to their old Custom of Watch and Ward: And concluded his Speech in the following Terms:
'The Gentlemen on the other Side have likewise insisted upon the Hardships of proceeding against the Provost and City of Edinburgh in this Manner: There are only three Methods, Sir, by which a Parliamentary Prosecution can be or hath been carried on. One, which as been long out of Use, I hope never shall be revived; the second is by Impeachment; and the third is by Bill, as in the present Case. The two last are the only Methods that could have been used against the Provost and Citizens of Edinburgh. Had they been proceeded against by an Impeachment, they could have had no Chance to be acquitted but one, which is the Judgment of the House of Peers, the Law having put it out of the King's Power to interpose where the Commons are the Prosecutors. But by the present Method, if the Party proceeded against is censured by the Peers, he has the Chance of being acquitted by the Commons, and if condemned by both, he has still a further Chance that the King will not pass the Bill. For these Reasons, I am heartily for the Commitment of this Bill.'
Duncan Forbes, Esq;
Duncan Forbes, Esq; after expressing the utmost Abhorrence of the Crime and its Authors, and clearing himself from the Suspicion of all National Prejudice, went on as follows:
The Citizens of Edinburgh, Sir, are divided into two Classes: One of which composes the Corporation, pays Scot and Lot, and has the only Right to vote in chusing their Magistrates and Representatives in Parliament: The other Class, Sir, consists of the very Dregs of the People, who have not the least Interest in any of these Points; they easily embrace, and are much pleased with, every Opportunity of being tumultuous. Should the present Bill pass into a Law, it would be directly formed to favour the latter, who were the Authors of the Murder of Porteous, in case he was murdered by any who lived within the Jurisdiction of the City of Edinburgh, and to censure the former, who, it appears from the Evidence given at this Bar, has an Interest in quelling every Riot of the like Nature with that which is now under your Consideration, and who actually, as I hope to shew more at large by and by, did use their utmost Endeavours to quell the Riot which gives Rise to the present Bill.'
He then, after describing the City of Edinburgh, took Notice that the Situation of the City Guard was such as that it could not be removed without the greatest Inconveniency, and that the Citizens returning to their old Custom of Watch and Ward must be attended with the Ruin of their Trade, since they were by that Custom to mount Guard, each Man in his own Person for five or six Days in a Month. He then gave some affecting Instances of the Fury of Mobs in Edinburgh, and the Usefulness of the City Guard in quelling them.
'Allow me now, Sir, continues he, to consider the Conduct of the Lord Provost of Edinburgh, during that unparallel'd Insult upon all Laws and Government, which happened when the unfortunate Porteous was murdered. And indeed, Sir, I own I think it comes pretty plain out in the Evidence, that he behaved not only with Prudence but Zeal, nay with a Courage which could scarce be expected in a much younger and much more active Man. No Evidence of any Credit, Sir, has yet pretended to say, that the Lord Provost, or Magistrates of Edinburgh, had Information of this Riot's being to happen on the Day on which it did happen. It is true, one Baily is so rash as to own that he drank with some of the Conspirators, who defended the Justice of the Murder, some Days before it was perpetrated, and that he himself was present during the Riot: After an Acknowledgement of this Kind, I leave it to this House to judge what Credit ought to be given to a Man, who in some Sense owns his being accessory to the Murder himself. As to Mr. Dun, the other Evidence that spoke the fullest to this Point, the House has already heard too much of his Character, from Gentlemen of unquestioned Probity and Honour, for me to make any Remarks upon what he has advanced. It is true, there is one Evidence of an undoubted Character, (I mean Captain Lin) who seems to make it suspected that the Lord Provost had Information given him of the Riot's being to happen on the Wednesday: But, Sir, does it appear by that Gentleman's Evidence that, if he did believe it himself, he acquainted the Provost, or any of the Town Council of his Grounds of Belief? He says, he came and acquainted the Lord Provost that such a Report was current; the Lord Provost asked him, if he believed such an Attempt would be made? Of whom he had heard the Report? And if it met with any Credit among the Men of Sense he conversed with? His Answers to these Questions were, That if such an Attempt was made, he did not believe it would be before the Day fix'd for the Execution of Porteous; and that the Report was spread only among Women and Children, and entertain'd by Fools. And, Sir, he gave a very good Reason before this House, why he did not believe it; which was, That he judg'd it impracticable for the Mob to undertake and to succeed in any such Attempt. I must further observe, with respect to the Lord Provost, that he was so cautious and so unwilling to let slip any Opportunity of receiving any Information in this Affair, that he caused Captain Lin to walk into the Room where the other Gentlemen in Company were, and to repeat what he had said; asking at the same Time of these other Gentlemen (one of whom is a worthy Member of this House) if they had heard of any such Report; who all agreed that they had heard nothing of it, except from Persons of so little Authority and Credit, that they did not think it worth while to raise any Alarm about it. I cannot but observe likewise, that the Captain's own Conduct shewed how little Credit he thought was to be given to the Report, since he left the Town on the Friday Afternoon, and did not return till the Monday following, which was the Day before the Riot happened. But, Sir, to put the Zeal and Care of the Lord Provost beyond the Possibility of being question'd, he did not flight this Information, groundless as it seemed, but called a Council, where it was resolved to have all the three Companies of the City Guard upon Duty, and that the Officers of the Train'd Bands should be in Readiness upon the Wednesday; for I must again observe, Sir, that there has not the least Circumstance come out in Evidence to prove that the Report went of the Riot being to happen upon the Tuesday, the Day on which it actually happened. The Objection, Sir, that is made with respect to the City Guard not being provided with Powder or Shot, if we consider the Evidence upon that Head, can never affect the Lord Provost. It appears that the Officer who commanded the Guard always apply'd to the City Treasurer when his Men wanted Powder and Shot, who gave an Order to the Storekeeper for what Ammunition was required. If no such Intimation, Sir, was made to the Lord Provost or to the City Treasurer; if the Captain, whose Business it was, did not make the usual Application in order to have his Men supplied with Ammunition, I hope no Gentleman in this House will impute it to the Lord Provost, who is no military Man, and cannot be supposed to be acquainted with these Matters, that they were not supplied. In short, Sir, I cannot see the least Grounds for founding the present Bill upon any Circumstance of the Lord Provost's Behaviour before the Riot happened. It appears to me, Sir, that he used all the Precautions that any wise Man could have used upon such an Occasion, and that he committed no other Blunder in Conduct, except that of not acting contrary to the Advice and Judgment of every Man about him, who were all of Opinion, that if there was any Foundation for the Report of a Riot's being to happen on that Occasion, it would not happen before the Wednesday, which was the Day appointed by the Judges of Porteous for his Execution, and that to make any Appearance of providing against the Riot before the said Day, was the readiest way to occasion a Riot. And allow me, Sir, to say, the Thing speaks itself; the Rebels had no Certainty of any Reprieve having come to the unfortunate Person; so that it was fairly to be presumed, they would wait to see if they could obtain, in the Course of Law, what they otherwise were resolved to obtain by Violence.
'As to the Lord Provost's Behaviour during the melancholy Time when that barbarous Riot happened, I think, Sir, it has been admitted by the learned Gentlemen who spoke for the Commitment of this Bill, that he had used several Efforts to quell it, but might have used more and stronger; it has likewise been said, Sir, that he neglected the proper Means of suppressing it. How he could have used stronger Efforts than he did use, is, Sir, what I cannot easily apprehend.
'Has it not appeared from the Evidence given at the Bar of this House, that he no sooner was informed of the Appearance of a Disorder, than he dispatched away the Captain of the City Guard, in order that he might draw out his Men, that he (the Lord Provost) might put himself at their Head and march against the Rebels? Has it not appeared, Sir, that he was as good as his Word, that he followed the Captain with as much, nay more Expedition than could have been expected from his Age and Infirmities? He met the Captain returning from the Guard House, from whence the Violence of the Rioters had forced him. The Hopes of suppressing them by means of the Guard having failed, the most probable Method was to apply for Assistance from the King's Troops. This dangerous Commission was readily accepted of by an honourable Member of this House, who executed it with great Difficulty and Hazard. It has been objected, Sir, that no Letter was written requiring General Moyle to march his Troops into the City, and that without such a Letter there was no Reason to expect that he would come to the Assistance of the Magistrates; but, Sir, it appears there was not Time even to write a Letter tho' it had been as short as was proposed by a learned Gentleman; and the honourable Gentleman who was dispatched from the Street (for I must observe that he went from the Street, not the Tavern) has declared in Evidence, that tho' such a Letter had been written he would not have carried it, because if he had been seiz'd upon by the Rioters, and if such a Letter had been found about him, there was no room to doubt but that they would have treated him with as little Ceremony as they afterwards shewed to Porteous.
'In the mean Time, Sir, it seems, the Violence of the Mob rose to such a Height, that there was a Necessity for the Magistrates to take some other Measures for the common Safety. It was proposed that the Alarm Bell should be rung. in order to bring the Citizens to the Relief of their Magistrates: But such, Sir, was the Foresight of the Rebels, that they had seized the Tower in which this Bell hung, so that there was no Possibility of getting at it. It was then proposed, Sir, to send the proper Officer to raise the Captains and Heads of the Train'd-Bands; but this Expedient fail'd likewise; you have heard by what Means it did fail, and that neither the Lord Provost, nor any other Magistrate was to blame.
'The Lord Provost, that nothing on his Part might be omitted, likewise made another Attempt, in Person, to suppress the Rioters. And it was, Sir, an Attempt so hazardous, that there are very few Civil Magistrates but wou'd have thought they had done their Duties very well, tho' they had not gone so far. The Numbers that accompanied the Lord Provost, Sir, were much disproportion'd to that of the Rebels; the Rebels were arm'd, those with the Lord Provost without Arms; yet all this did not hinder the Lord Provost from advancing against them, till several of his Company were wounded with Stones, till even Fire-Arms were level'd at them, and till the bravest and boldest in the Company thought it prudent to retreat, because to have done otherwise wou'd have been for the Magistrates to have exposed both their Persons and Authority to the Insults of a barbarous and an enraged Multitude. The Lord Provost at last, Sir, did retreat, and the Rebels perpetrated their bloody Resolutions. Now, Sir, if we take a View of the Provost's whole Conduct upon this melancholy Occasion, I wou'd gladly know of any Gentleman, who has heard the Examinations of the Evidence, if it appears that the Lord Provost omitted any one Measure that was proposed to him for the Suppression of this unhappy Riot.
'As to his Behaviour after the Riot was over, Sir, I have heard of only one positive Circumstance that has been advanc'd against it, which is, the not imprisoning the Man who was seiz'd in the Grass-Market the next Day. But how, Sir, can that Circumstance affect the Lord Provost, who appears never once to have seen or to have heard of that Man till he was dismiss'd? And indeed I think the Gentlemen who seiz'd that Man, had they pretended to have put him in Prison, wou'd have bid fair to have renew'd the Tumult; since, as you have heard, the Rebels were yet upon the Spot in great Numbers, and with a Shew of Resolution; this, Sir, the Rioter who was seiz'd seems to have been well aware of; otherwise it can never be supposed he wou'd have been so mad as to remain upon the very Spot of Execution, and to allow himself tamely to be seiz'd.
'The Hon. Gentleman, Sir, a worthy Member of this House, who is my Colleague in the Post I have the Honour to fill in that Country, is a Person whose Zeal for his Majesty's Service can be as little question'd as his Abilities, which I am sure are very great; that Hon. Gentleman, Sir, I say, can witness how indefatigable, how zealous, nay, I may say, how keen the Lord Provost was in promoting whatever cou'd contribute to discovering the Conspirators, so that if they were not discover'd, it was not owing to him but to us; and if this House is resolv'd to pass the present Bill into a Law, on account of any Neglect that happen'd upon that Occasion, it is but just that you shou'd strike his Name out of the Bill, and clap in the Names of a Couple of your own Members.
'Thus, Sir, I have given my Opinion with respect to the Insufficiency of the Evidence for passing the present Bill into a Law, and I have done it in the Sincerity of Heart; for what Motive, Sir, can I have in what I have spoken, but the Discharge of my Duty as a Member of this House? It is more than probable, Sir, that I shall never trouble you again with my Sentiments upon this or any other Subject, but my Conscience wou'd ever afterwards have accus'd me, it I had quitt d my Seat here before I had given my Reasons why I think the present Bill shou'd not be committed.'
General Wade observ'd, that there was one Circumstance that prov'd three Things; first, that the original Design of the Conspirators was to have murder'd Porteous on the Tuesday; secondly, that it was talk'd of openly; and thirdly, that the Citizens and Inhabitants of Edinburgh were the Murderers. The Instance was the Case of a Servant to one Colin Alison, who swore that a Fellow came into his Master's Shop, on the Thursday or Friday before the Murder was committed, and inform'd him that Tuesday following was the Day appointed for revenging innocent Blood.
He observ'd that the Riot deserv'd the Name rather of a well conducted Conspiracy, than the Proceedings of a Mob: And then vindicated Mr. Moyle, the commanding Officer at Edinburgh, upon the Principles of military Discipline.
Mr. Shippen then spoke against the Committment, and Charles Erskine, Esq: who was the Solicitor for Scotland, answer'd that Part of General Wade's Speech relating to Alison's Servant. Mr. Serjeant Skinner then spoke for the Committment, and observ'd, that in other Countries the Common-People are generally on the side of Mercy, but that it was otherwise on this Occasion. Lord Cornbury then spoke against the Commitments, and took Notice that it was extremely impolitical as well as unjust to provoke the Scots: For, continued his Lordship, if they should say, let us fall with the Philistines, who knows but that they might have Strength enough to shake the Pillars of this House, even tho' they shou'd bury themselves under the Ruins of the Constitution.
Henry Fox, Esq; then spoke for the Commitment, and Lord Glenorchy against it. As did Mr. Oglethorpe.
We have omitted giving the Extracts of what was excellently said by each of these Gentlemen on this Occasion, because the Reader will find the Force of their Arguments already stated.
The next who spoke, was Mr. Erskine, who took Notice of one Thing overlook'd in the Debate, 'And that, said he, Sir, is with regard to the Punishment inflicted by the present Bill upon the Citizens of Edinburgh; what I mean is the demolishing the City-Gate. If this Gate, Sir, were the Property of the Persons who by the present Bill are supposed to be guilty, and if these Persons were proved to be guilty, I shall not deny but the Punishment would be adequate to the Offence: But the Case, Sir, is otherwise; the Gate belongs to the Corporation, and Corporations, in the Sense both of our Law and the Civil Law, are in some measure looked upon as Minors, whose Estates the Magistracy of the City, and the Electors of that Magistracy, which are the Town Council, and the Constituents of that Town-Council, which are the Merchants and Traders, are no other than the Trustees and the Guardians. Hence, Sir, it is plain, that if we shall think fit to punish the Corporation for a Misdemeanor committed by the Magistrates and Traders, we shall do the same thing, as if a Judge, for a Fault committed by the Guardian of a Minor, should give Sentence, that the Damage sustained by the Misdemeanor should be made up out of his Pupil's Estate. If Gentlemen view the present Bill in this Light, and at the same Time reflect, that, besides the inhuman Insult committed upon Majesty and Government by the barbarous Riot we are now considering, the Corporation itself was a very great Sufferer; and had it not been for the Measures taken by the Magistrates, in all Appearance, there would have been still a greater by that Riot. I say, Sir, if Gentlemen would be pleased to consider this, I am persuaded they would be very cautious in giving their Votes for inflicting the Censure proposed by the present Bill.'
He then took Notice that the Imputation of Barbarity was not peculiar to the common People of Scotland, for that one poor Fellow had been pelted to Death but a few Days before on the Pillory in Westminster.
Sir William Yonge.
Sir William Yonge then spoke for the Commitment, and seem'd to think that the Concessions made by Mr. Solicitor General were rather too favourable for the Provost and the Citizens of Edinburgh.
Lord Polwarth rose next, and spoke in Substance as follows:
Ever since this Bill was brought before us, I have endeavoured, by a close Attendance in the House, to make myself as much Master of what could be said for or against it, as I was able; and if any Gentleman will shew where one Argument in the Charge against the Lord Provost and City of Edinburgh has been proved (fn. 14), I will this instant give my Vote for the Commitment of the Bill: I say it again, Sir, if any Gentleman will shew one Article that has been proved against the Lord Provost and the City of Edinburgh, I will give my Vote for the Commitment of this Bill. The Honourable and Learned Gentleman who seconded the Motion, in his Observations upon the Evidence, was pleased to advance, "That during the Time of the Riot a Person came into the Tavern where the Lord Provost and Magistrates were, and affirmed, that he knew one of the Rioters, offering at the same Time to name him, but that he was forbidden by some of the Company, who desired him to wait till a more proper Opportunity.' I think there was not one Article advanced by any of the Witnesses that escaped my Notice; and I dare venture to affirm, that not one of them gave any such (fn. 15) Evidence. Nay, I appeal to the Minutes of the Examinations, and sit down (fn. 16) till the Clerk shall read them. I shall make a Remark or two upon one Part of the Speech that was delivered by the Honourable Gentleman who spoke last; the rest of it I think requires none. The Honourable Gentleman seems to be satisfied in general with the Truth of what is laid down in the Preamble of the Bill; but has not been pleased to shew how one particular Circumstance has been proved. It has always been my Opinion, Sir, that as we are the Judges of this Affair, we ought to act upon the same Grounds, and be determined by the same Rules of Equity, as other Judges are. As we have gone thro' a long Course of Evidence, we can have no other Foundation to build our Judgment upon, than the Facts that have appeared from that Evidence; else, why have we spent so much Pains and Time upon it, at such an advanced Season of the Year? And we have heard Evidences, Sir, who have seemed to be very much disposed to have aggravated every Circumstance of Misconduct or Negligence, could they affix either of them upon the Provost or Magistrates of Edinburgh. Something indeed was advanced that looked that way, and has been much insisted upon by the Gentlemen who have spoken for the Motion, tho' the Account given by Gentlemen of undoubted Honour and Probity of the Personal Character of these Witnesses, and the many Inconsistences of their Evidence, make it surprizing to me, that they ever should be mentioned but with Indignation. I am perswaded, Sir, that if Gentlemen would lay their Hands upon their Hearts, and ask of themselves, whether they would have voted in the Manner they have done, had the Case of the City of Edinburgh been that of the Cities of Bristol, York, or any of the large Cities of England; I say, Sir, I am perswaded Gentlemen would have required, that every Tittle of their Charge against them should have been fully and undeniably proved. It is true, Sir, that none of the Authors of this detestable Murder have ever been apprehended: But, Sir, is it necessary, that, in order to make a decent and plentiful Execution, we should punish those who seem to have no other Crime but their Endeavouring to suppress the Crimes of others; and must the Innocent be punished, because the Guilty have gone unpunished? As this seems to me, Sir, to be the Case with respect to our Proceeding on the present Bill, I heartily give my Vote against the Motion.'
Sir John Barnard, among other things, spoke to the following Effect:
Sir John Barnard.
'As I have some Concern in the Civil Magistracy of a City, and probably may have more, I don't think it sufficient for me barely to give my Vote against the present Motion, without taking Notice, that we are now upon a Point that may some time or other equally affect every Civil Magistrate, and every Community in the Kingdom. If the Lord Provost of Edinburgh was guilty of any Fault during the Time of this unhappy Riot, it was of too much Rashness, and too much Zeal, in exposing his Person and Character in order to suppress it. For my Share, Sir, I cannot see what View the Lord Provost could have, if he did not act with Zeal and in good Earnest, to expose both his own Life, and that of his Friends, in his repeated Endeavours to suppress the Riot: And had I been in his Case, Sir, I doubt very much if I had gone so far as he did. I know the Behaviour of the Gentleman who was Lord Mayor of London, when a Mob happened upon the Anniversary of the memorable ExciseBill's being set aside, has been mentioned upon this Occasion: But all the World condemned that Gentleman for exposing his Person so much as he did to the Fury of the Populace, and there was not a Friend he had but blamed him for his Rashness. But setting aside all these Considerations, Sir, I think that our proceeding by Bills of this Nature has so dangerous a Tendency, that tho' I did think the Subjects of the Bill guilty, I should never give my Vote for proceeding against them in this Manner. It may be a Precedent, Sir, for a future Minister to wreck his Indignation upon any Civil Magistrate; but we have no room to imagine that he would bring in any such Bill against another Minister, let him hate him ever so much, because that may be a Preparative for serving himself in the same Manner by a succeeding Minister who is in Power, and who hates him.
Sir Robert Walpole spoke next to the following Effect:
Sir Robert Walpole.
'Ever since I had the Honour to sit in this House, I never heard any Affair more dispassionately examined into, more candidly discussed, and more patiently attended to, than the present, especially by the Gentlemen of the Country where this Scene of Murder and Rebellion happened; and indeed, as I stand affected in the present Question, I could be almost tempted to wish, that the Gentlemen of that Country had defended the Cause of their City and its Magistrates with less Eloquence and Calmness than they have done; and at the same Time that some other Gentlemen had behaved with more Decency and Temper: For after the impartial Behaviour of this House, Sir, in the present Question, I cannot see the good Tendency of these inflammatory Speeches that have been thrown out by some Gentlemen upon this Occasion. For my Part, Sir, I disdain the Distinction that has been made between Civil Magistrate and Minister of State. And, I hope, I never have given any Grounds, by my Behaviour as a Minister, to imagine I would have a Regard to any such Distinction. And I am sure, Sir, the Behaviour of the Ministry upon this Occasion can give no room for any of these inflammatory Infinuations. The Subject of the present Bill was thought to be in the other House of so important a Nature, that they spent a great deal of the present Session in the Examination of this Affair, and have sent down the Bill to us in the Shape it is at present. We ourselves, Sir, after a long and painful Examination, have found there has been a cruel Murder and a Rebellion committed in that City. There is no Gentleman but must own, that these are two Crimes that ought to be severely punished, upon not only the Authors, but even upon such as in the most distant Manner were their Abettors. And, Sir, from the Course of Evidence that has been laid before this House, I can with a good Conscience say, that had the Towns of Bristol, Norwich, &c. or any of our great Incorporations in England, behaved in the Manner the Magistrates and Citizens of Edinburgh did in the present Occasion, I should have been as forward as any Gentleman in this House to have inflicted as severe, if not a severer Punishment upon them, than what is implied by this Bill against the other. In short, Sir, I think that we should err against all Prudence and good Politics, should we, without once committing it, reject the present Bill. If, after it is committed, Gentlemen should think fit to make such Amendments upon it, as may leave the Privileges of the Incorporation of Edinburgh untouched, and remit the most penal Part of the Punishment of the Lord Provost: And if these Amendments should be founded upon Reason and Equity, I shall by no means be against them: But in the mean Time I heartily vote for committing the Bill.'
W—r P—r, Esq; stood up next, and among other Things said, 'He was of Opinion there could nothing new come out in Debate, when the Bill should be committed, that did not then appear; and that as they had heard the Evidence examined, he thought there was no occasion to take up the House's Time longer about it at this advanced Season. For since they had no other Rule to go by in the present Affair, than what arose from the Evidence; and as that appeared so lame, that not a single Point was proved against the Provost or Citizens of Edinburgh, he was of Opinion, they could do nothing more agreeable to Equity or Reason, or to the Honour and Dignity of Parliament, than to drop the Bill entirely.'
It was then resolved, that the Bill should be committed to a Committee of the whole House: It was next resolved, that the House would on the Monday following resolve itself into a Committee upon the said Bill.
Upon this Occasion it was at first proposed, that the House should next Day resolve itself into the said Committee; but some Members took Notice, that next Day, being the 10th of June, they thought it a very improper Day for them to go into a Committee on such a Bill. The Scope of the Bill, as it then stood, was for demolishing the Ports, and dismissing the Guard of the City of Edinburgh, those very Ports, and that very Guard which had enabled that City to keep the Pretender out in the Year 1715; and for doing this they were to chuse that very Day which was celebrated by all Jacobites as the Pretender's Birth-Day. This they thought was not very prudent; it would be a Matter of Triumph to all Jacobites, who would not fail to represent it as a Judgment upon the City of Edinburgh for shutting their Gates against their lawful and rightful Sovereign, as Jacobites were pleased to call the Pretender to his Majesty's Crown and Kingdoms. This Consideration, they hoped, would have some Weight against agreeing to that Part of the Bill, when they went into a Committee upon it; but they took Notice of it at that time only to prevent the House's going into a Committee upon such a Bill on such a Day. For this Purpose they hoped it would be of sufficient Weight; and that therefore no Gentleman would insist upon the House's going into a Committee upon that Bill till Monday then next.
This seemed to be the Occasion of putting off the Commitment of the Bill till Monday; and on Monday the House having resolved itself into the said Committee, the Preamble and every Clause of it was opposed, and upon each there was a Sort of distinct Debate, several of which were pushed so vigorously, and with so much Success by the opposing Party, that the Bill not only changed its Name, but in some manner its Form.
Nay, in the Committee, the Bill run a very great Risk of being quite lost; for after all the Amendments had been made, the Bill then appeared to be so very different from what had been sent them by the Lords, that when a Motion was made for reporting the Bill with the Amendments to the House, the same was strenuously opposed; and after a long Debate, when the Question was put, the Division was 130 for reporting, and 130 against it; so that it came to the casting Vote of Colonel Bladen, who was Chairman of the Committee, and who gave his Vote in favour of the Bill. But there was another Circumstance which contributed to the passing of this Bill, or rather prevented its being lost; for at this very time, when this equal Division happened, J—s E—ne of G——ge, Esq; and Mr. S——r G——l for Scotland, were both in the House of Peers engaged as Counsel in the Hearing of an Appeal there; which both of them endeavoured as much as they could to have put off, in order that they might be present and upon their Duty in the House of Commons; but this Request was refused; so that neither of them was present, upon this Debate or Division in the House of Commons; and as both of them had often before declared themselves against every Part of this Bill, it is probable, if they had been present, they would have voted against reporting the Bill, which would have prevented its being in the Chairman's Power to do what he did.
The Motion being thus carried for reporting the Bill with the Amendments, the Report was ordered to be received the next Morning; and Colonel Bladen having accordingly reported the Amendments that Day, the first Amendment made by the Committee, which was that for leaving out the several Clauses for demolishing the NetherBow Port, and for taking away the Guard of the City of Edinburgh, was read a second Time, and agreed to by the House; then the other Amendment made by the Committee, being the Clause for imposing a Fine upon the Corporation of the City of Edinburgh, was read the second Time; and a Motion being made for re-committing that Amendment, after a long Debate, the Question was put upon that Motion, and was carried in the Negative, by 144 to 123; after which this Amendment was agreed to by the House; and then the Bill was ordered to be read a third Time next Morning.
The Bill relating to the City of Edinburgh, on account of Porteous's Murder; pass'd into an Act.
June 13. The said Bill was read a third Time; and several Amendments were made to the Title; which had become necessary from the Amendments made in the Committee to the Bill itself; after which a Motion was made for passing the Bill; and upon the Question's being put, it was carried in the Affirmative by 128 to 101; and Colonel Bladen was ordered to carry, the Bill to the Lords, and acquaint them that the House had agreed to the same with some Amendments, to which they desired the Concurrence of their Lordships, which were agreed to, and the Bill pass'd into an Act.
June 21. The King came to the House of Peers, and put an End to the Session, with the following Speech.
The King's Speech at putting an End to the Third Session.
My Lords and Gentlemen,
"I am come to put an End to this Session of Parliament, that you may be at Liberty to retire into your several Countries, and, in your proper Stations to promote the Peace and Welfare of the Kingdom.
"I return you my Thanks for the particular Proofs you have given me of your Affection and Regard to my Person and Honour; and hope, the Wisdom and Justice; which you have shewn upon some extraordinary Incidents, will prevent all Thoughts of the like Attempts for thé future. The Conduct of this Parliament has been so uniform in all your Deliberations upon publick Affairs, that it would be as unjust not to acknowledge it, as it is unnecessary to enumerate the several Particulars,
Gentlemen of the House of Commons,
"Your Care, as well in raising the Supplies necessary for the Service of the current Year, as in doing it in the Manner least grievous and burthensome to my People, is a fresh Instance of your equal Concern for the Support of my Government, and for the true Interest of your Country.
My Lords and Gentlemen,
"You cannot be insensible, what just Scandal and Offence the Licentiousness of the present Times, under the Colour and Disguise of Liberty, gives to all honest and sober Men, and how absolutely necessary it is to restrain this excessive Abuse, by a due and vigorous Execution of the Laws; Defiance of all Authority, Contempt of Magistracy, and even Resistance of the Laws, are become too general, altho' equally prejudicial to the Prerogative of the Crown, and the Liberties of the People, the Support of the one being inseparable from the Protection of the other. I have made the Laws of the Land the constant Rule of my Actions; and I do, with Reason, expect in Return all that Submission to my Authority and Government, which the same Laws have made the Duty, and shall always be the Interest of my Subjects."
The Parliament prorogued.
Then the Lord Chancellor, by the King's Command, prorogued the Parliament to the 4th of August.