House of Lords Journal Volume 20: 20 February 1718

DIE Jovis, 20 Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

Georgius Princeps Walliæ.

PRAYERS.

Message from H. C. with a Bill.

A Message from the House of Commons, by Mr. Farrar and others:

With a Bill, intituled, "An Act for continuing the Duties on Malt, Mum, Cyder, and Perry, for the Service of the Year One Thousand Seven Hundred and Eighteen; and for making forth Duplicates of Exchequer Bills, Lottery Tickets, and Orders, lost, burnt, or destroyed; and for appropriating the Supplies granted in this Session of Parliament;" to which they desire the Concurrence of this House.

The Orders of the Day being severally signified to the House:

Robbery, &c. to prevent, Bill.

Ordered, That this House be on Saturday next put into a Committee of the whole House, to consider further of the Bill, intituled, "An Act for the further preventing Robbery, Burglary, and other Felonies; and the more effectual Transportation of Felons and unlawful Exporters of Wool."

Bone Lace Bill.

Ordered, That this House be on Saturday next put into a Committee of the whole House upon the Bill, intituled, "An Act for Relief of the whole Traders and Dealers in English Bone Lace, by obviating several Doubts in the several Acts for licensing Hawkers and Pedlars."

Coin Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act for encouraging the bringing of Foreign Bullion into the Mint, to be coined; and to prevent the melting the current Coin of this Kingdom."

The Judges delivered the Clauses prepared by them, on the Resolutions agreed to by the House on Monday last.

Ordered, That the said Bill be committed to a Committee of the whole House, on Saturday next; and that the said Clauses be referred to the Consideration of the said Committee; and that the Judges, or some of them, do then attend.

Mutiny, &c. Bill.

The Order of the Day being read, for the House to be put into a Committee of the whole House upon the Bill, intituled, "An Act for punishing Mutiny and Desertion; and for the better Payment of the Army and their Quarters:"

Strangers in the House to be taken into Custody.

Notice was taken, "That divers Persons were in the House, who had no Right so to be."

They were thereupon directed immediately to withdraw.

Which some of them refusing or neglecting to do:

It is Ordered, That the Gentleman Usher of the Black Rod do take into his Custody any Person who shall presume to be in the House contrary to their Lordships Standing Orders.

Instructions to the Committee on the Mutiny Bill, refused:

Then it being moved, "That an Instruction be given to the Committee of the whole House to whom the Bill last mentioned stands committed, That they do provide, that no Punishment be inflicted at any Court Martial, which shall extend to Life or Limb."

And long Debate thereupon:

The Question was put, "That it be an Instruction to the Committee of the whole House to whom the Bill, intituled, "An Act for punishing Mutiny and Desertion, and for the better Payment of the Army and their Quarters," stands committed; that they do provide, that no Punishment shall be inflicted at any Court Martial, which shall extend to Life or Limb?"

It was Resolved in the Negative.

Protests against refusing them.

"Dissentient.

"W. Ebor.
"Buckingham.
"North & Grey.
"Scarsdale.
"Strafford.
Poulett.
"Boyle.
"Anglesey.
"Mansel.
"Compton.
Weston.
"Jon. Winton.
Willoughby de Broke.
"Bingley.
"Fran. Cestriens.
"Geo. Bristol."

And a Motion being made, and the Question being put, "That it be an Instruction to the said Committee of the whole House, That they do make an effectual Provision, to secure the Obedience both of the Officers and Soldiers, to be continued by this Bill, to the Civil Magistrate, according to Law?"

It was Resolved in the Negative.

"Dissentient.

"W. Ebor.
"North & Grey.
"Salisbury.
"Scarsdale.
"Strafford. Poulet.
"Boyle.
"Anglesey.
"Mansel.
"Weston.
"Compton.
"Willoughby de Broke.
"Jon. Winton.
"Bingley.
"Geo. Bristol.
"Fran. Cestriens."

"Memorandum, We, whose Names are subscribed, do protest against the First aforementioned Resolution, for refusing the First moved Instruction to the Committee on the Mutiny Bill, for the Reasons following:

"1. Because the Exercise of Martial Law in Time of Peace, with such Power as is given by this Bill, to inflict Punishments extending to Life and Limb, was not in the First Year of this Reign, nor hath in any former Reign, been allowed within this Kingdom by Consent of Parliament; but hath, upon any Attempts made to introduce such a Power, been opposed and condemned by Parliament, as repugnant to Magna Charta, and inconsistent with the fundamental Rights and Liberties of a Free People.

"2. Because, after the Peace of Ryswick, and that of Utrecht, in the several Reigns of King William and Queen Anne, of Glorious and Ever-blessed Memories, no such Power was given to any Court Martial; and yet it is well known, that the Forces then continued on Foot were kept in exact Discipline and Order.

"3. Because it is not ascertained, either by this Bill, or by any other known Law or Rule, what Words or Facts amount to Mutiny or Desertion, or to an exciting, causing, or joining in Mutiny; and consequently the Judges of a Court Martial have it in their Power to declare what Words or Facts they think fit to be Mutiny or Desertion, and to take away the Life of any Officer or Soldier by such an arbitrary Decision.

"4. Because, should Death be thought the proper Punishment, in Time of Peace, for Mutiny or Desertion, or even for the least Disobedience to any lawful Command; yet as we conceive the Nature of such Offences ought first to have been ascertained by this Bill, and the said Offences being declared Capital, the Trial thereof ought to have been left to the ordinary Course of Law: In Consequence whereof, the Officers and Soldiers would, upon such Trials, have been entitled to all those valuable Privileges, which are the Birth-right of every Briton. Nor doth it appear to us, that any Inconvenience could thereby have arisen to the Public in Time of Peace; at least, not any such as can justify our depriving the Soldiery of those legal Rights, which belong to the meanest of their Fellow-subjects, and even to the vilest of Malefactors.

"W. Ebor.
"De Loraine.
"Greenwich.
"Devonshire.
"Belhaven.
"Willoughby de Broke. Northampton.
"Scarsdale.
"Guilford.
"Strafford.
"Bristol.
"Abingdon.
"Dartmouth.
"Joh. London.
"Trevor. Harcourt. Boyle.
"Tadcaster.
"P. Hereford.
"Townshend.
"Rutland.
I'lay. Gower. Foley.
"Castleton. Bathurst.
"Lumley. Poulet. Berkeley of Stratton.
"Bingley.
"Bute. Montjoy.
"Masham.
Weston. Mansel.
"Fr. Roffen.
"Oxford.
"Fran. Cestriens.
"North & Grey.
"Geo. Bristol.
"Compton."

"Memorandum, We, whose Names are subscribed, do protest against the Resolution for refusing the other Instruction, moved to be given to the same Committee on the Mutiny Bill, for the Reasons following:

"1. Because no Provision whatsoever is made by this Bill, for securing the Obedience of the Military to the Civil Power, on which the Preservation of our Constitution depends.

"2. Because we conceive that a great Number of armed Men, governed by Martial Law, as they have it in their Power, so are naturally inclined, not only to disobey, but to insult, the Authority of the Civil Magistrate; and we are confirmed in this Opinion, as well by the Experience of what hath happened here at Home, as by the Histories of all Ages and Nations; from which it appears, that wherever an effectual Provision hath not been made to secure the Obedience of the Soldiers to the Laws of their Country, the Military hath constantly subverted and swallowed up the Civil Power.

"W. Ebor. Devonshire.
"Greenwich.
"North & Grey. Scarsdale.
"Bristol. Strafford.
"Trevor.
"Willoughby de Broke.
"Northampton.
"De Loraine. Dartmouth.
"Fr. Roffen.
"Lumley. Tadcaster.
"Guilford.
"P. Hereford.
"Compton. Harcourt.
"Townshend.
"Boyle.
"Belhaven. Rutland.
"Castleton. Gower.
"I'lay.
"Fran. Cestriens.
"Abingdon. Foley.
"Oxford.
"Geo. Bristol. Joh. London.
"Bute. Montjoy. Weston. Berkeley of Stratton.
"Bathurst.
"Masham. Poulet. Mansel.
"Bingley."

Mutiny Bill.

The House, pursuant to the Order of the Day, was adjourned during Pleasure, and put into a Committee upon the Bill, intituled, "An Act for punishing Mutiny and Desertion; and for the better Payment of the Army and their Quarters."

And, after some Time spent therein, the House was resumed.

And the Earl of Clarendon reported from the said Committee, "That they had made some Progress in the Bill; and that he was directed by the Committee to move, that another Time may be appointed, to proceed further therein."

Ordered, That To-morrow this House shall be put into a Committee of the whole House, to consider further of the said Bill; and the Lords to be summoned.

Causes put off.

Ordered, That the Cause wherein the Lord Caher is Appellant, and Catherine Nagle and others Respondents, which stands for an Hearing as To-morrow, be put off to Monday next; and the other Causes removed in Course.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Veneris, vicesimum primum diem instantis Februarii, hora undecima Aurora, Dominis sic decernentibus.