Grey's Debates of the House of Commons: Volume 9. Originally published by T. Becket and P. A. De Hondt, London, 1769.
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Tuesday, May 7.
On some hot words that passed betwixt Capt. Bertie (fn. 1), and Mr Harbord.
Mr Hampden, sen.] I have taken notice of some angry words betwixt these two Gentlemen. I move that they may stand up, man by man, and engage, upon their honours, not to proceed farther in this difference.
Mr Harbord.] The Gentleman (Mr Bertie) is of too much honour to engage one that has not the use of either of his hands. If I have been ill-used, I cannot pass my word not to proceed farther, without satisfaction; therefore, pray consider with yourselves what you have to do. It is a hard thing for me to acknowlege I have received an injury, and require no reparation for it.
Sir Christopher Musgrave.] I am sorry for the occasion of this Debate. As Harbord is a man of honour, so he has expressed great honour relating to the other Gentleman. But we ought to declare, what was the occasion of the misunderstanding; and, I hope, these honourable Persons will declare they will proceed no farther.
Mr Garroway.] The whole thing these Gentlemen stand upon is a Punctilio, who shall stand up first and declare. I would write both their names, and put them in a hat, and let them draw out who shall declare.
Col. Mildmay.] Punctilio of Honour is a great point; but it is the general opinion of the House, that no words were spoken of particular reflection by Harbord, but generally as the Parliament-Men were called over. So many judgments having passed, methinks these Gentlemen should be more free, without putting the House or themselves to farther trouble. If not, you may make use of your authority.
Mr Hampden, sen.] I think, it is equal for both their Honours. I apprehend, Mr Speaker, that it is your part to make an Order, "That being informed of some angry words betwixt these Gentlemen, upon which a quarrel may ensue, they be taken into Custody." This is your duty, that no mischief may ensue.
Mr Harbord.] Do you think imprisoning me would frighten me to petition for release? I do not think myself injured, and can it be thought a man of my age would quarrel when I am not injured? If you do commit me, what will become of the King's business?
Mr Herbert.] I would have you very careful what sort of Question you put. One declares, "he does not think himself injured:" He has done it. All know there were Pensions, and if Bertie had thought himself injured, he should have complained. I would have them both stand up, and declare, as has been moved.
Lord Norreys (fn. 2).] I remember the case of Westbury. I have heard Bertie say, "If Harbord will declare he meant not him, he is satisfied."
Sir Henry Capel.] I am concerned for both these honourable Gentlemen; one has been my friend these many years, the other is related to me; but it is the House must be judge of one and the other. As for that of Pensions, it has been universally spoken of, and will be still, that the Government may not be under any corruptions whatsoever. First, Harbord says, "he is not injured;" therefore, if Bertie will say, "he apprehends himself not reflected on."—Or rather that the House vote there is no injury done—
Wednesday, May 8.
Mr Godolphin.] After the Limitation, in the first place, upon the King, Queen, and her Heirs, and Princess Anne, &c. when this Limitation is spent, where will you go next? Where shall the Crown devolve, all these dying without Issue? Therefore I humbly offer this Proviso: "Provided always, and be it hereby declared, That nothing in this Act is intended to be drawn into Example, or Consequence, hereafter, to prejudice the Right of any Protestant Prince, or Princess (fn. 3), in their hereditary Succession to the Imperial Crown of these Realms."
Mr Garroway.] You are upon a high point. I do believe, this Proviso was brought in by this Gentleman with a good intention; but, whether it be full enough not to break into the Limitation of the Act?—'Tis more expressive than the word "hereafter." I would not leave any loop-hole in the Bill, for any to come to the Crown that you intend not. God knows how soon any body may die; therefore I would not leave it at large. Those who expect a Common-wealth in England, by failure of those you have named, I would disappoint them all. But if there be any umbrage, that the thing is not full, I would have it so, and shall agree to it.
Mr Attorney Treby.] This Proviso does not well agree with the Bill. He that spoke for retaining the Proviso, says, "He respects nobody by it in particular in the Bill, but to clear the matter of the Succession hereafter." Therefore I think the Proviso is useless. Nothing, 'tis true, is appointed in the Bill, farther than the Entail upon the persons named; and I suppose (as the Law does) that those you have named shall have Issue; but if they have not, the Common Law provides for it, which is, the right Heirs of the Royal Family: But when you say, "a Protestant Prince, &c." it seems to exclude the right Heirs that are not; and to say, as in the Proviso tendered, "This shall not be drawn into Example;" 'tis only a caution and admonition, that this flattering Proviso will not bind up their Power. Rather than have a hand in any thing of a Republic, I would have lost my hand. Where there is a great Territory, and a warlike People, as the English are, Monarchy is a Government fit for that part of the World; the experiment of a Common-wealth will be impracticable. This Bill leaves the descent of the Succession to the Common Law, and no otherwise; let them be what they will, Protestants must be in the Succession; and so they will, without this Proviso.
Mr Hales.] In this Bill, you have not thought fit to go farther than the present King, &c. and in no Acts of Succession farther than the Issue of persons in being: But if you take the word "hereafter" not to preclude any Protestant that has Right to inherit, it will comprehend the Prince of Wales, if he turn Protestant, and he may challenge the Crown again. The words are exclusive to Papists already, and there is no reason to clog the Act with this Proviso: Therefore I would reject it.
Mr Ettrick.] I have seen the Proviso, and I believe there is no design in it of favouring the Prince of Wales. If the Throne be vacant, this goes to take away the rightful Succession of other Princes, and is an Abdication to the whole frame of the Government. If there be no Heirs of those in the Entail, you have left the Government to the People. You have great reason to countenance all vindication of yourselves from a Commonwealth; and therefore I think the Proviso fit to be received.
Sir Christopher Musgrave.] As to the arguments of the word "hereafter," if subject to such interpretation, then you would do well to amend it with the word "hereafter." I would have no doubt to affect the Limitations of the Succession in the Bill.
Mr Hampden, sen.] I never heard of this Proviso before. As it is penned, no Gentleman can be for it; and when it is mended, nobody can tell whither it will extend. You have already the Bill to establish the Government, and all people submitted to it, and you sit here by it; and now you are going over again to what you did so many months ago. You have provided against all Popish Successors, and now you are going about to do it a-new. I do believe, this comes from the agency of some foreign Minister; and do this now in a new Bill, and then you must let the King, the Queen, and Princess Anne be heard. Why was not this spoken of sooner, in all this time? And now to enter into such a matter of State, now to bring in this, to put a doubt upon all you have done already!—I am against it.
Mr Godolphin.] I hear it said, "Possibly this Proviso comes from the agency of some foreign Minister." I would have it known, I never took measures from any foreign or domestic Minister. It looks, by the Proclamation, as if Dominion was founded in Grace—(and reads the Proclamation.) Here is no notice taken of the Right of the Princess of Orange's Title, but of her Merit only (fn. 4). That the Monarchy might be looked upon as hereditary. and not elective, was my motive to bring in the Proviso.
Sir Thomas Clarges.] I conceive, the inducement to bring in this Proviso, is, because the Limitation of the Succession is very loose. There is no certainty of the life of any man; and I would not have the Kingdom fall into a Common-wealth; which it may, if the Limitation, &c. goes no farther. I heard a Gentleman say, "We did not wisely, not to keep things in our hands when we had them." This is one reason, why I would have the words added that are moved: Instead of "hereafter," "after the Limitations here mentioned."
Col. Herbert.] I saw a Letter of a Sister of Prince Rupert's, wherein she was complaining of great hardship done her children, that they were not regarded in the Entail of the Crown; therefore I move, that they may be mentioned.
Sir Henry Capel.] By what has fallen from the Gentleman, you see, foreign Ministers have been doing in this matter; but you have it answered already, "That the Heirs at Common-Law are asserted to succeed, for default of those in the Entail." I have heard it talked, as if King William was King by the Divine Right, and Dominion founded in Grace; then you had best put the Question, Whether the King be King, or not? Is not the Clause in the Proviso, "of not drawing it into Example," arraigning all you have done already? In the Long Parliament, when the Court was carrying on their great designs of Popery and Arbitrary Government, Gentlemen that opposed it were called Common-wealths-men; and we are told of "the Rebellion, and 1641, and cutting off the King's head," and all this for opposing the Court's designs, when they were about to destroy our Religion and Liberties. It can never be a Common-wealth. When the Succession in Henry VIII's time was turned this way, and that way, it was put into the King's power to settle the Succession by his Will: And where were the thoughts of a Common-wealth then? The first part of the Proviso is a reflection upon you, for omitting it before; and the second there is no need of, or whether the Prince of Wales comes in by it—Either a foreign Minister is in it, or a stratagem from France; and I would throw it out.
Sir Christopher Musgrave.] I know not why we are told of "France, and foreign Ministers." If we have not liberty to speak, let us go home. I know not what thoughts other Gentlemen have of the Prince of Wales; I have none: But I know we have had a Common-wealth, and a Rebellion in 1641 also. If the thing be capable of Amendment, it ought to be retained; and 'tis the Right of every Gentleman to bring in a Proviso.
Mr Godolphin.] I defy any man to prove any such thing as "corresponding with a foreign Minister," or that I manage "a stratagem from France." Turn me out of the House, if that be proved. This Proviso was suggested to me by no man.
Sir Henry Goodrick.] When I hear this fatal rencounter we have had with France, and then these reflections here, and that we may go into the Country,—these expressions are made here, with a supposition that we have no liberty of speech; but this, said at this time, when the French are upon us, and who have had too much influence here; and we are told of 1641. After the admonition of the Speaker, nothing but the Vacancy of the Throne, and the not Vacancy, occasions this business; and are we returning to "vacant," or "not vacant," upon our Petition of Right? And whoever speaks against it, doubts the Government. The Common-Law leaves all to the Right of the Succession, and there let us leave it.
Lord Falkland.] I disapprove of the Proviso, as it is brought in; but it may be mended, so as to justify your proceedings abroad. 'Tis said abroad, you have settled the Government upon the King and Queen; 'tis true, they have no children, and the Princess of Denmark none that have lived, though married a great while; so there are but three lives for it; if it should happen that these should die without issue, where is the hurt of this Proviso? Fortify the Proviso against the tale of the Prince of Wales. You have Protestant Princes abroad, and the more you settle this, the more you protect them.
Mr Hawles.] Now I understand, by mending the Proviso with the word "hereafter," I am more against it than I was at first. There has been talk of "Government founded in Grace," but much more mischief if founded in Right. This questions the whole Government. There is not one word in the Act that can prejudice any foreign Successor; but this, by a side-wind to come in, makes me suspect it. When the City-Charter was questioned, the King's Counsel against it said, "'Twas a Commonwealth in a Commonwealth;" therefore I am not for this Proviso thus introduced.
Mr Somers.] I think there is no hurt in wholly leaving out this Proviso. In the case of Henry IV, it was a solemn Judgment, that the Throne was vacant, and then it was settled on the King's sons, and no farther by name; for it would come into its own channel by succession of descent. In the Life of Henry VII, Lord Bacon reckons it as one of the wisest actions of his reign, that he limited the Crown no farther, but left it to descend. Let us tread in the steps of our Ancestors; you have declared the Vacancy of the Throne; but to do this now, would bring a suspicion upon what you have done: Make your Succession so founded on Grace, that none but Protestants succeed. This strikes at the whole foundation of what you have done. Therefore lay it aside.
Mr Paul Foley.] This Proviso is of too great importance to be brought in by a Rider. 'Tis not fit, on the sudden, to take any farther prospect of the Limitation of the Succession by a Rider, but refer it to a farther consideration.
Monday, May 13.
The House was informed that Sir Henry Monson [Member for Lincoln] attended according to Order (fn. 5).
Sir John Thompson.] I hope you will be as tender to your Members, as the Lords are to theirs. If he has not sat, I know not how he is culpable—The Bishops have three months time to consider, &c. and I hope you will give him that indulgence.
Sir Thomas Lee.] If your Members refuse to take the Oaths, their place is void; but, as for giving him time to consider of it, it appears not yet that he refuses them, I believe, in some time, you'll see the Government will be obeyed; and in a few months you may see how the Parliament will deal with such as are not of the same Allegiance. Therefore I would give him time.
The House having taken notice that you have staid a great while about the town, and have not tendered yourself to take the Oaths of Allegiance, and the Test, as you ought to have done, hath summoned you to take them.
Sir Henry Monson.] I am sorry I cannot comply with taking the Oaths, to qualify myself to sit in the House, for particular reasons, such as no way tend to the disturbance of the Government; and I do submit myself to the pleasure of the House. He withdrew.
Mr Edward Montagu.] I know him to be an honest Gentleman, and as well inclined to the Government as any man. In Charles II's time, he voted for the Bill of Exclusion, and deported himself very well. What his particular Reasons are for not taking the Oaths, I know not.
Mr Pelham.] I believe, as has been moved, you cannot regularly commit him, and if any man have a title to your favour, he may. No man went better in the former Parliaments; and I beg that no farther mark of your displeasure be upon him, than to dismiss him from your service.
Sir Thomas Clarges.] I never knew an honester man; both the son, and the father, true public-spirited men. I have sat long in Parliament with them. You know what the Statute directs in this case of refusing the Oaths; therefore I would not enlarge your jurisdiction farther than sending a new Writ to chuse another Member in his place.
Lord Fanshaw.] I have been under a long indisposition; and though I have been about town, in the evenings, yet I was under a course of physic and diet; and since I was absent, an Act has passed; and being not qualified by taking the Oaths, I could not properly appear here.
Tuesday, May 14.
[In a Grand Committee.] On the Heads for a Bill of Indemnity (fn. 6).
Sir Richard Temple.] Take the Act of Indemnity of Charles II before you, and then you will see the Exceptions. I would extend them to as few as may be. It will be necessary to make some examples of those who have endeavoured the ruin of their Country and Government.
Sir Thomas Clarges.] That Act of Indemnity of 25 Charles II, I hope, may be the better Precedent. Con sider, first, what Exceptions you will make; and next, what shall be pardoned; and next, consider that of 12 Charles II.
Mr Carter.] If I take it right, the King has given us some measures. If offences against the Government are so far in the dark, you will never find out persons. There is some discourse, without doors, that if we go about things, we shall set the whole Nation on fire. I hope the King's direction will be most acceptable to the Nation.
Sir Robert Howard.] I would willingly hear that Act read; and many things in it must be in this: But there are new-invented crimes in this age, that this Act cannot reach. We must go by things and men, and then by such things and men as no age ever saw. I know we have a large field of things and men: Things of the worst nature are the largest field; therefore consider the nature of things; and if I ever move in favour of thing or man, I will tell you the reason, and unless some merit induce me to it.
Sir Richard Temple.] I agree with Howard in all but his last Motion; not that I am an Advocate for any person, but for the whole Nation, if things involve many you would not. Treasons are always excepted in any general Act of Parliament. If we go to persons, we shall agree, for we all know them; if to things, we are in a wood, and shall never get out of it; and I despair that the Act will ever come to good. I would put mens minds in peace, and make examples only of notorious instruments.
Sir Henry Capel.] If it be the sense of the Committee, that all shall be forgiven, I am content; but what we do, is for satisfaction of the Government, not that any Gentleman can be pleased with this. I think to begin with things; and, to prevent heats, I take this idea; as if in the country, they complain of hardships from the Judges, men of the Robe, who throw dust in the eyes of Juries; so if you take consideration of crimes against the Laws, and the Government, use the rest with what moderation you please, either by fines, or otherwise; and begin with things.
Sir Joseph Tredenbam.] Consider of what consequence it will be to make a multitude of Offenders. There are many Offenders, and you know who they are. We know the great men that have offended in the open light. There is no other end in this Bill, but to reconcile mens minds to the Government; and those you declare obnoxious, and it is no severity upon them, we know. When France was in Combustion, 'twas the great care of Henry IV to punish some, and leave the rest in some degree of favour. I desire, therefore, that you will proceed against persons that have been the most notorious Offenders.
Sir Robert Cotton.] The King has sent a gracious Message to us about an Act of Indemnity. No Government can be so secure, as when satisfied that they have a gracious merciful King. I know the consequence of the beginning of the last Government. Those in the West did see such a Shambles (fn. 7), as made them think they had a Turk, rather than a Christian, to their King. If you proceed that way, of enquiring into things before persons, you will leave such jealousies in people, as that they will not think themselves safe; it will go so large, I fear it will hazard the peace and safety of the Nation. The great wheels, the primum mobiles, that have gone so violently, and brought us into this Confusion, I move that you will proceed against them, and that the King's gracious intentions may have farther effect, and those only excepted.
Mr Harbord.] I hope you will not pardon any of those crimes condemned by Law already: They that changed their religion. You are hard put to it, to find out Money. Great men of 8, or 10,000l. per ann. I hope, may help you. You punish men that do not take the Oaths and the Test, and will you not punish those who have renounced God Almighty? I move they may be excepted.
Mr Harley (fn. 8).] I think the King in his Message has led us, and showed us how to proceed for satisfaction of Justice. There is a crime, God says, he will not pardon, innocent blood. A Gentleman said, "The West was a Shambles of their quarters;" and what made that Shambles? It began in Law. It was the common discourse amongst the Ministers, that the King cannot have Justice, and, in order to that, began the violation of the City-Privileges, in the choice of their Sheriffs.
Sir Robert Howard.] In those that were perverted and changed their Religion, it was Treason. Suppose you name the man, there must be an appendix of his crime; and must that man be a sacrifice for that particular thing? So whatever man you name, you must name the thing. If there must be so general a forgiveness of all, you must go equal. You must either take notice of all; or forgive all things, that the invention of times has found out of equal nature. In the Bill for repealing Colonel Sidney's Attainder, you repeal the murder, but not a word of the murderers: Shall it be excused upon direction of the Judge? We know what we did with Ld Chief Justice Keeling (fn. 9). Try one way first; name any one man, by experiment, upon any one head.
Sir John Lowther.] To reduce matters home, without foreign examples; we had often occasions for general pardons, formerly, when families thrust one another out of the Throne, and then there was great need of pardons for the subject. When Lord Strafford was charged in Parliament, and other great exorbitancies, though the crimes and offenders were many, yet it was agreed, that such a number should be named, who should be excepted out of the general Indemnity. We are resolved, that these shall be prosecuted by the Attorney-General, and we need not descend into particulars here; but by general ideas, and so excepted.
Mr Hawles.] I am for excepting persons by particular names; but we are now only upon methods. Certainly, upon things, you intend not to pardon murder, nor robbery, &c. but now if you enquire into things, you will utterly destory the Government, which in King Charles II's, and all King James's time, was as ill as the French Government. Instance in Cornish's Tryal, one of the most barbarous Tryals (fn. 10) ! Had I been concerned in it, I should have thought I deserved death as much as Vrats, that killed Mr Thynne. Make it, that the Indemnity shall not extend to such and such persons, or such and such things.
Sir Richard Temple.] If you name the crime, you may involve more than you think of. Do you mean every man that had the least share in it? I mean only the notorious persons. Persons have had pardons, and you must void all those pardons before you can reach them; you must not hunt the herd, you will never single any. I would begin with the Chancellor (fn. 11), a Lawyer, and he to destroy all Law! I would except him from pardon in his honour and lands.
Sir Henry Capel.] To answer Temple, he says, "If you proceed upon things, you will engage those you would not;" but are not you masters of your own methods? To answer Lowther, if we are to except nothing but Treason, we are in a Parliamentary way, and may declare Treasons. As for the seizing Charters, there was nothing like that; that cuts up all your Liberties by the root.
Mr Garroway.] I am at a stand what I shall offer for your service. If you go to capital crimes, you will be tender, and go but a little way. I would not dabble in blood; I would, from my heart, forgive them, but from pecuniary penalties I would not exempt them. You turned two out of the House yesterday, for refusing the Oaths. You will not think such a man fit for employment. Upon the first Head, resolve what you will make capital, then for sines, and not to bear Office for the future.
Col. Austen.] I hear it said, "that people guilty of these great crimes, are known;" but I lived in a sphere, at such a distance, I could not know them. The work has been done by a Spirit in the dark, and unless you conjure down this Spirit, you will never attain your end. Here has been something said of a Proclamation, &c. I would set up marks of severity for public Justice; this is part of the King's directions. I would distinguish the things, and let the persons be who they will.
Sir Christopher Musgrave.] I must confess, I am unfit to speak in a business of so great weight. I think there is a necessity to proceed upon persons, and not things, because you are told, from the Bar, "that possibly the Offences may not be Treason, by 25 Edward III, but by your legislative Power, you may proceed by Attainder." If so, then proceed as tenderly as you can, because 'tis a declaration of Treason, and is always made as little use of as possible. For this occasion your Bills of Attainder will be without number; therefore I move that you will proceed upon persons, and not things.
Col. Birch.] I think it absolutely necessary that you come to some conclusion before you rise. I would not leave the matter under an alarm, but, before you rise, leave them to what they shall trust to. If things must find out persons, you are in for a great while. Methinks you may go a nearer, and a surer way; for when you come to an Act of Oblivion, I suppose, (I dare not impose) you resolve to name your number capable of suffering Life or Limb, suppose twenty, or forty, or as many as you will, (I am but for a small number for Life or Limb) and that blank be filled up; and, for all others, though not excepted for Life or Limb, yet I would except them from bearing any share of the Government. The thing I drive at and design, is, to make an end. After putting in "Life and Limb," he may say, "I shall escape without an Office." Put a certain number, and you will put the Nation out of fear, and you have done your work.
Mr Hampden, sen.] Where mercy is to be showed, I shall be as forward as any man, but I think Justice is necessary. If you go on in this way, you will hardly come ashore. If you enumerate all sorts of crimes, you will go the farther from your end, they are so many, and of so many sorts; one of the greatest crimes that struck at your Foundation was that of Blood. But the Foundation of these things was laid so early, that it will be a great way to look back. How many are concerned in the greater degree, and how many in the less, as particeps criminis? This will be a very long resolution. Now whether the men, or names of crimes, shall be first? To save a friend, that will be impossible to wrest out of human nature, but your end is to terrify men for the future. What is else the end of decimating armies? When the Act of Indemnity passed in 1660, (perhaps in as great a Revolution as ever the Nation was under,) you set down ten, or twenty, (I will not offer the number now) excepted for life, and so many for pecuniary mulcts, and incapacity of Offices, according to degrees of crimes.
Sir Henry Capel.] I am neither afraid of Sea nor Wood to enter into; will not you except the bloody Judges? And those who were of opinion for the Dispensing Power? When you have passed the Vote, cannot you except what persons you please?
Mr Harbord.] There is a great difference betwixt the Bishop of Rochester's (fn. 12) Case and the Chancellor's, a great inequality; and therefore they ought to be weighed in the Ballance.
Sir John Lowther.] I believe it impossible to name crimes before persons; the season of the year cannot admit it. If you enquire into circumstances, the first promoter and adviser, if you keep this in suspence, it will be the greater dissatisfaction; therefore I am for naming persons before crimes.
Mr Garroway.] I am still of the same opinion that you will sooner come to your end, by voting Heads on capital offences, and then go to your men. I am not for forty nor fifteen, but put it upon that Head, "not exceeding ten;" you may have guess at names, and put in, as in the last Indemnity, the greatest number. If named openly, there may be misfortunes and feuds of families hereafter.
The Speaker.] Garroway mistakes. There was no such balloting as he mentions. In the Convention, it was only for sending Gentlemen to go Commissioners to the King into Holland. Then for excepting persons out of the Act, the first Vote was, "but seven for Life, and twenty more for other pains and penalties," and those were nominated in the House.
Mr Hampden, sen.] I rise only to rectify Powle. All the Regicides in the Act of Indemnity, 1661, were notified by the crime; the rest, for other offences, were deprived of bearing Offices. Many of the House may remember there was a long Debate upon the persons upon whom the Proclamation went out; it was a great Debate, whether they should be hanged, or not, because the Act said, "they should not be pardoned."
Resolved, That it is the Opinion of this Committee, That, in proceeding upon the Bill of Indemnity, the Crimes shall be first declared, for which some Persons shall be excepted, for vindication of public Justice. Agreed to by the House.
Mr Harbord.] I am sorry for the misfortune of Lord Chief Justice Herbert. I told you before, there would be tenderness. There is a great necessity for Money, and can you do better than supply the Crown by these mens Estates?
Sir Richard Temple.] If you proceed by Impeachment, or Bill of Attainder, you must express all their crimes. If you will go upon all the Heads in the paper, (I am no advocate for any body) you will involve a great part of the Nation; therefore go upon the first Question.
Mr Sacheverell.] I am against that Question, for if it pass in the Affirmative, you put persons upon offending again, and cannot secure yourselves against others in that Bill. They have taken away Offices, and Estates, from particular persons, and now you will indemnify all those you name. Some examples I would have, and not many, that they go not on to do again what they have done. For death I agree with the smallest number, and the fines not extravagant; and those who have betrayed their trust, not to be trusted again.