Chapter 14

(8.) "And whereas it is of the utmost importance to our settlements in America, and the trade thereof [Footnote: Left out, "in time of war."], that the commanders of the ships stationed there, should use their best endeavours for the protection and security of such trade, [and the colonies there;] be it farther enacted by the authority aforesaid, that [Footnote: Left out, "during the continuance of any such war."] none of his majesty's ships, which shall be stationed at any of the said settlements, shall quit or leave their stations under pretence of going to careen or refit, or under any other pretence whatsoever, without an especial order from the lord high admiral, or commissioners for executing the office of lord high admiral, (or the commander in chief of his majesty's ships of war in those seas, or in America, [Footnote: These words were added.]) for the time being. [Footnote: Left out, "or unless the commander or commanders of such ship or ships shall be ordered off their station, to be employed in the line of battle in the American seas, which shall not be done, but in cases of the greatest necessity."]

(9.) "And to the end that it may appear what service the ships so stationed shall perform, be it enacted by the authority aforesaid, that the captain or commanding officer on board every such ship or vessel, shall keep a distinct and separate account, digested into proper columns, of the times when the said ship or vessel sailed out of port, when such ship or vessel came in, the service she was upon, together with the number of days cast up, that such ship or vessel was out upon such duty, and shall cause the same to be fairly entered in one or more book or books, to be kept for that purpose; such entries to be digested in proper columns, and to be [every six months] transmitted [Footnote: Left out, "together with the duplicates thereof."] to the captain or commanding officer of every such station ship, to the lord high admiral, or commissioners for executing the office of lord high admiral for the time being, and shall also send duplicates of the said accounts at the first opportunity.

(10.) [Footnote: This clause was added in the committee.] "And be it farther enacted by the authority aforesaid, that the commanders of his majesty's ships of war, on their arrival at any of the said settlements, shall deliver a copy of the orders they shall have received from the lord high admiral, or commissioners for executing the office of lord high admiral of Britain for the time being, so far as they relate to the protection of the said colonies, and of the trade of the said colonies, to the governour and council of the respective colony or plantation where they shall be stationed; which orders shall be entered into the council books of such colony or plantation respectively; and the said governour and council are hereby authorized and empowered to give such directions in writing to the captains and commanders of such stationed ships, as they shall think will be most for the protection and security of their trade: and the said captains and commanders are hereby required to conform to, and observe the same, provided the same do not contradict the instructions they shall have received from the said lord high admiral, or commissioners for executing the office of lord high admiral for the time being."

HOUSE OF LORDS, JUNE 1, 1742.

The bill for the security and protection of trade and navigation being this day read a second time in the house of lords, the earl of WINCHELSEA, who had lately accepted the chair at the admiralty board, rose and spoke as follows:

My lords, I know not by what accident the numerous defects and general impropriety of this bill have escaped the attention of the other house; nor is there any necessity for examining the motives upon which it passed, or of inquiring whether its reception was facilitated by the popularity of the title, the influence and authority of those by whom it was proposed, or the imaginary defects of our present regulations, which have been on some occasions represented to be such as it is scarcely possible to change but for the better.

The knowledge and experience of those who concurred in sending this bill for your lordships' approbation, cannot but produce some degree of prepossession in its favour; for how can it be imagined, my lords, that men of great abilities and continual opportunities of observation, should not be well versed in questions relating chiefly to their private interest, and discover the nearest way to their own success!

And yet, my lords, it will be found that their sagacity has, perhaps, never so apparently forsaken them as on this occasion, that no proposition was ever laid before this house, in which more contracted motives were discovered, and that the bill is such as might rather have been expected from petty traders, unacquainted with the situation of kingdoms, the interests of princes, the arts of policy, the laws of their own country, and the conduct of former wars; than by merchants of extensive traffick, general correspondence, and great attainments.

Before I proceed, my lords, to confirm the character of the bill by a distinct consideration of the particular paragraphs, and an enumeration of the several improprieties and defects which may be found in it, I think it not superfluous or unseasonable to remark one general errour, common to this with all other laws of the same kind, the errour of prescribing rules to military operations, of attempting to fix what is, in its own nature, variable, as it must depend upon external causes to which the British legislature has yet found no means of extending its authority.

To direct, upon remote conjectures and uncertain prospects, the conduct of a commander, is, in my opinion, my lords, not more rational than to trace upon a chart the course of a ship, and pronounce it criminal to deviate from it. The one supposes a foreknowledge of the motions of the wind, and the other of the counsels of our enemies; nor can any thing be expected from such regulations, but overthrow and disgrace. I believe, my lords, that in running over the histories of the world, and examining the originals of the mightiest empires, and the sudden revolutions which have been produced by the overpowering torrents of war, which, at different periods of time, have swept the powers of the earth before them, it will be found that all rapid conquests, and sudden extensions of empire, have been effected by sovereign princes at the head of armies which acted only by immediate command, that few memorable actions have been performed by delegated commanders, and that of those few whose names have descended to posterity, those have generally been most successful who were invested with the largest powers, who acted without control, and were at liberty to snatch every opportunity, and improve every favourable conjuncture, without any necessity of communicating their schemes, of waiting for the result of tedious deliberations, or of soliciting a relaxation of former orders.

But, my lords, though, perhaps, all positive prescriptions of the conduct of military undertakings have a tendency rather to obstruct than promote success, yet as they may be drawn up with different degrees of wisdom and sagacity, they may have a greater or less appearance of usefulness and reason. Such as have been well concerted may afford useful hints, though they ought not to be enacted with indispensable obligations. And to consider even those in which less proofs of skill and foresight can be discovered, may have, at least, this advantage, that the proposals may not be speedily repeated, nor our counsels embarrassed with absurd expedients. I shall, therefore, lay before your lordships my opinion of every paragraph, and show what are the objections which may be raised, both to the whole bill in general, and to its particular clauses.

To the bill in general, it must be objected, that it is filled with vague expressions, and ideas so indeterminate, that no man can tell when he has obeyed it. Here are many rules ordered to be observed, when _there shall be no just and sufficient reason_ for neglecting them, and some operations to be performed as often _as there shall be occasion,_ and ships are to cruise in a certain latitude, unless _there is a necessity of employing them elsewhere._

Did not the title of this bill, my lords, give it some claim to a serious consideration; and did not the integrity and capacity of those by whom it was drawn up, exempt them from contempt and ridicule, I should be inclined to treat a law like this with some degree of levity; for who, my lords, can be serious when his consent is desired to a bill, by which it is enacted, that men shall act on certain occasions, as they shall think most expedient?

Nor is this, my lords, the only instance of precipitancy and want of consideration, for many of the injunctions are without any penal sanction; so that though we should pass this bill with the greatest unanimity, we should only declare our opinion, or offer our advice, but should make no law, or what, with regard to the purposes of government, is the same, a law which may be broken without danger.

But general objections, my lords, will naturally produce general evasions; and a debate may be prolonged without producing any clear view of the subject, or any satisfactory decision of a single question: I shall, therefore, endeavour to range my objections in order, and, by examining singly every paragraph of the bill, show the weakness of some expedients, the superfluity of others, and the general unfitness of the whole to produce the protection and security intended by it.

In the first clause alone may be found instances of all the improprieties which I have mentioned to your lordships. It is proposed that in a time of war between this empire and any other state, such a number of ships shall be employed as cruisers or convoys in the Channel, as the admiralty shall judge most proper for that purpose. What is this, my lords, but to continue to the admiralty the power which has been always executed? What is it but to enact that the ships shall be stationed in time of war as the commissioners of the admiralty shall determine and direct?

Of these ships, it is farther enacted, that they shall be careened three times a-year, or oftener if there shall be occasion; but it is not declared who shall judge of the necessity of careening, or who shall be punished for the neglect of it when it is requisite, or for the permission or command of it when it is superfluous.

There is yet another regulation, my lords, in this clause, which ought not to be passed without remark. It is provided, that the sailors employed in the cruisers and convoys in the Channel, shall not be turned over but to other cruisers and convoys; by which, I suppose, it was intended, that our outguards should be prevented from being weakened, and that our merchants should never be destitute of protection; an end truly laudable, and which deserves to be promoted by some establishment better concerted. The expedient now proposed, seems to have been contrived upon the supposition that the admiralty may not always be very solicitous for the safety of the merchants, and that, therefore, it is necessary to secure them by a law from the danger of being deprived of protection; for, upon the present establishment, the removal of men from one ship to another must be made by the permission of the admiralty; and when the right of such permission shall by this law be taken away, what new security will the merchants obtain? The admiralty will still have the power, though not of turning over the men, yet of recalling the ships, and commerce suffer equally in either case.

By the second clause, my lords, there is still a power reserved to the admiralty, of dismissing these guardians of commerce from their stations, and employing them _in case of great necessity_ in the line of battle, on this side cape Finisterre. Not to cavil, my lords, at the term of _great necessity,_ of which it is apparent that the commissioners of the admiralty are to judge, I would desire to be informed what measures are to be taken, if a royal navy should unluckily rove beyond this cape, which is marked out as the utmost bound of the power of the admiralty, and should there be reduced to the necessity of engaging desperately with a superiour force, or retiring ignominiously before it. Are not our ships to pass a single league beyond their limits, in the honour or preservation of their country? Are they to lie unactive within the sound of the battle, and wait for their enemies on this side the cape?

The third clause, my lords, is, if not absurd like the former, yet so imperfectly drawn up, that it can produce no advantage; for of what use will it be to station an officer _where his majesty shall think fit?_ At all the royal docks there are officers already stationed, and in any other place what can an officer, deputed by his majesty, do more than hire workmen, who will as cheerfully and as diligently serve any other person? And why may not the captain of the vessel procure necessaries for money, without the assistance of a commissioner?

In the fourth clause, my lords, nothing is proposed but what is every day practised, nor any authority conferred upon the court of admiralty, than that which it always possessed, of punishing those who disobey their orders. The provision against the crime of wilfully springing a mast, is at least useless; for when did any man admit that he sprung his mast by design? Or why should it be imagined that such an act of wickedness, such flagrant breach of trust, and apparent desertion of duty, would in the present state of the navy escape the severest punishment? Would not all the officers and mariners on board the ship see that such a thing was wilfully done? Would not they cry out--"You are springing the mast," and prevent it, or discover the crime, and demand punishment?

The fifth clause, my lords, is without any penal sanction, and, therefore, cannot be compulsive; nor is any thing of importance proposed in it, which is not already in the power of the senate. Either house may now demand an account of the stations and employments of the ships of war; nor does the senate now omit to examine the conduct of our naval affairs, but because our attention is diverted by more important employments, which will not by this bill be contracted or facilitated.

The use of the provision in the sixth clause, my lords, I am not able to conceive; for to what purpose, my lords, should the ships appointed for any particular service be nominated at any stated time? What consequence can such declarations of our designs produce, but that of informing our enemies what force they ought to provide against us? In war, my lords, that commander has generally been esteemed most prudent, who keeps his designs most secret, and assaults the enemy in an unguarded quarter, with superiour and unexpected strength.

In the seventh clause, many regulations are prescribed to the commanders of those ships which are appointed to convoy the trading vessels. These regulations, my lords, are not all equally unreasonable, but some of them are such as it may, on many occasions, be impossible for the commanders of his majesty's ships to observe in such a manner as that the masters of merchant ships may not imagine themselves neglected or forsaken. The captain of the convoy may be, therefore, harassed by them with prosecutions, in which it may be difficult to make his innocence appear. The convoy may be sometimes accused of deserting the traders, when the traders in reality have forsaken the convoy, in confidence that they should either arrive safe at the port without protection, or be able, if they should happen to fall into the enemy's hands, to charge their misfortune upon the negligence of their protector.

The eighth clause, my lords, is so far from being such as might be expected from merchants, that it seems rather to have been drawn up by men who never saw the sea, nor heard of the violence of a storm. For who that had the slightest idea of the uncertainty and hazard of a sailor's condition, who that had been ever told of a shipwreck, or but looked on the pictures of naval distress, would propose that no ship should retire to a harbour, or quit the station to which it was assigned, _on any pretence whatsoever_ without permission, which sometimes could not be obtained in many months, and which never could be received soon enough to allow of a remedy for sudden disasters, or pressing calamities. It might with equal reason be enacted, that no man should extinguish a fire without an act of the senate, or repel a thief from his window, without a commission of array.

It is happy, my lords, that this clause is not enforced by a penalty, and, therefore, can never have the obligatory sanction of a law; but since it may reasonably be supposed, that the authors of it intended that the observation should be by some means or other enjoined, let us examine how much security it would add to our navigation, and how much strength to our naval power, if the breach of it had been made capital, which is in itself by no means unreasonable; for what punishment less than death can secure the observation of a law, which, without the hazard of life, cannot be obeyed?

Let us, therefore, my lords, suppose a crew of gallant sailors surprised in their cruise by such a hurricane as is frequent in the American seas, which the highest perfection of skill, and the utmost exertion of industry has scarcely enabled them to escape; let us consider them now with their masts broken, their ship shattered, and their artillery thrown into the sea, unable any longer either to oppose an enemy, or to resist the waves, and yet forbidden to approach the land, and cut off from all possibility of relief, till they have represented their distress to some distant power, and received a gracious permission to save their lives.

Misery like this, my lords, admits no exaggeration, nor need I dwell long on the absurdity of establishing regulations which cannot be observed, and which if they were enforced by any sanctions, proportioned, as all penal sanctions ought to be, to the temptations of violating them, must drive all our sailors into foreign service, or urge them, upon the first distress, to defiance of law, and fill America with pirates, and with rebels.

By the ninth clause, my lords, nothing is proposed but a relaxation of the present discipline. It requires, that the commanders of ships of war shall send only once in six months those accounts of their conduct and their service, which they are at present obliged to transmit by every ship that returns from America; so that by passing this bill, we shall only be disabled from receiving regular and seasonable informations of the transactions of our distant squadrons and colonies, shall be disturbed with groundless suspicions, and tortured with unnecessary suspense.

I have arrived at length at the last clause, a clause, my lords, worthy to be the concluding paragraph of a bill like this; a clause in which the power of the admiralty is communicated to the governours of our colonies; men, my lords, not hitherto much celebrated for their superiour wisdom, moderation, or integrity; of whom, at least, it is no reproach to assert, that they are known to be, for the most part, wholly unacquainted with maritime affairs, and very little famed for military knowledge; and of whom it is above all to be considered, that they generally commence merchants at their arrival in America, and may more probably direct ships sent to guard the colonies, to stations in which they may preserve their own vessels, than to those where they may contribute most to the general security of trade.

Thus my lords, I have examined without prejudice every paragraph of this bill, and believe, that from the objections which I have made, it appears now plainly to your lordships, that all the regulations which are of any use, are such as are already established by long custom, or by former statutes; and such, therefore, as it is unnecessary to mention in a new law; and that whatever is here to be found new, is absurd, unintelligible, or pernicious.

This bill, my lords, is said to be founded on the act made for the same purpose, in the wars of the queen Anne; but I cannot forbear to observe, that the original law, though not one of those to which much of the success of that war is to be ascribed, was drawn up with more discernment than the bill before us. It was, at least, intelligible; the number of cruisers was limited, and it was, therefore, possible to know when it was obeyed; but of this bill I can confidently assert, that as no man can understand, so no man can observe it.

I have spoken more largely, my lords, on this occasion, because this bill relates particularly to my present employment, in which, as I desire to do my duty, I desire to know it; and, surely, I cannot be condemned by your lordships for opposing a bill, of which the only tendency is to make my province difficult, to render one part of my office inconsistent with another, and engage me in the task of superintending the execution of impracticable measures.

What influence my arguments will have upon your lordships, I cannot foresee. As every man flatters himself that his own opinions are right, I hope to find this house concurring in my sentiments; but whatever may be the determination of your lordships, I am so fully convinced of the pernicious tendency of this bill, and the embarrassments which must be produced by an attempt to execute it, that if it be not rejected by this house, I shall willingly resign my office to others of more courage, or of greater abilities; for I can have no hopes of performing my duty under these restrictions, either to my own honour, or to the advantage of my country.

The duke of BEDFORD spoke next, to the following effect:--My lords, though the noble lord has produced very specious arguments against every paragraph of the bill before us, and though many of his observations are just, and some of his objections not easily to be answered, yet I cannot admit that it will produce those fatal consequences which he seems to foresee, nor am yet convinced that it will be either pernicious or useless.

It has always, my lords, been the practice of this house, to attend to every proposal for the publick advantage, to consider it without any regard to the character of those by whom it is offered, and to approve or reject it upon no other motives than those of justice and reason.

The same equity and prudence has always influenced your lordships to distinguish between the several parts of the same bill; to reject those expedients, of which, however plausible, either experience or reason may discover the impropriety, and to retain those from which any real benefit can reasonably be expected. We should never throw away gold because it is mingled with dross, or refuse to promote the happiness of the nation, because the expedients which were offered for that end happened to be conjoined with some others of a disputable nature.

By the prosecution of this method, a method, my lords, too rational and just to be neglected or forgotten, I doubt not but this bill, which, as I shall readily admit, is not yet perfect, may be improved into a law, from which the nation will receive great advantages, by which our trade will be extended, and our riches increased.

Many of the clauses, my lords, may, in my opinion, admit of an easy vindication, others may be amended by very slight alterations, and very few are either wholly useless, or manifestly improper.