the merchant is neither sure of his property, nor the seaman of the produce of his capture, when all will be law, litigation, and confusion? It directly calls to my memory the story relative to Sir Charles Wager, alluded to in a former debate by a noble and learned Lord near the table, [Mansfield,]who, after taking a very valuable prize, and having her condemned, when the balance came to be struck, found himself a considerable loser. On the whole, I think the principle of the bill wrong, the provisions absurd, oppressive, cruel, and contradictory, and the measure, taken together, to the last degree hasty, rash, unjust, and ruinous.

Lord Mansfield. I did not come prepared the last day this bill was under consideration to speak to it, though I delivered my sentiments upon some particular matters which happened then to come into discussion; nor should I now trouble your Lordships, did I not think myself called upon to assign my reasons for assenting to it. The noble Lord says this bill is hasty, rash, ruinous, and unjust. I shall beg the patience of the House while I endeavour to exculpate myself from that part of the censure which may be presumed to fall to my share; as giving it my support arises from the fullest conviction of its utter necessity in the present state of things. Before, however, I speak to the principle of the bill, I shall explain one matter which has been frequently mentioned. It has been objected that one of the clauses has a retrospective view, as it legalizes all seizures made before the passing of this bill. This, my Lords, is not unusual: it has, indeed, been the uniform practice in such cases. It is founded in justice; because, if such seizures were made wantonly, or without cause, and not upon the only ground on which they can be fairly defended, that of manifestly advancing the publick service, the clause in this bill will not protect or indemnify any act of that kind. Besides, what is the true legal construction of this clause? Not, surely, to seize the property and confiscate it. No; only to defend the actors against personal actions, the persons complaining being still left at full liberty to pursue their remedy at law, in order to recover their property or the value of it. It would, indeed, be impossible for officers in high command to act, if, for measures taken for the good of the State, they should be liable afterwards to be ruined by the almost infinity of suits that might be instituted against them when the commotions were over, and everything returned into its former tranquil state. The noble Lord seems to doubt the right of delegating the power of pardoning being inherent in the Crown; for my part, I am perfectly clear it has from the first establishment of the monarchy. General Gage exercised it on a late occasion, where, by proclamation, he promised pardons to every man in America but one or two individuals. It has been always the practice. Every General of an Army acting against Rebels is vested with this power. Indeed, I believe there never was a rebellion in this country, or its dominions, in which this power was not actually exercised. The Rebels taken in 1715 at Preston claimed it as an agreement, as the terms of capitulation. It was not granted: but the power was never disputed. A night or two ago I was reading the Register, a book of the first law authority extant. It is full of original writs. So early as the reign of Edward I, I find this doctrine of pardoning in the lump fully confirmed. I found there a dedimus potestatem, directed by that King to certain persons therein mentioned, to pardon all the people of Galloway. Was not this pardoning in the lump? Was not this pardoning a whole community? As to the original matter that gave rise to this bill, I always was of opinion that the people of America were as much bound to obey the acts of the British Parliament as the inhabitants of London and Middlesex. I always thought, that ever since the peace of Paris, the Northern Colonies were meditating a state of independency on this country. They have told you as much in one of the publications of the Continental Congress, wherein they thank Providence for inspiring their enemies with the resolution of not attempting to carry their schemes of dominion into execution till they had arrived at a growth and strength sufficient to resist them. I have not a doubt on my mind but this has been their intention from the period I allude to. Whatever might be their wishes before that time, their situation rendered it impracticable, because it was this country that could alone protect them against the power of France, to which their whole frontier lay exposed. But allowing that all their professions were genuine, that their inclinations were those of duty and respect towards this country; that they entered into the present rebellion through the intrigues and arts of a few factious and ambitious men, or those who ultimately directed them; that the Stamp Act was wrong; that the Declaratory Law might assert the supremacy over that country, but it ought never to be exercised, nor amount to more than such a power as his present Majesty claims over the kingdom of France—a mere nominal dominion; that no troops should be sent into that country, even to defend them, without their own permission; that the Admiralty Courts should never be made to extend there, though by the trial by jury the parties themselves would be judges; that offenders against the laws and authority of this country should be tried for offences by persons who themselves were ready to declare they did not think the charges criminal; that no restraints should be laid upon their commerce, though that great bulwark of the riches and commerce of this country, the Act of Navigation, depended on such restraints; that every measure hitherto taken to compel submission to the Parliamentary authority of this country was cruel and unjust; that every Ministry in this country were tyrannick and oppressive, and that the last is worst of all;—yet, admitting all this to be true, my Lords, what are we to do? Are we to rest inactive, with our arms folded, till they shall think proper to begin the attack, and gain strength to do it with effect? We are now in such a situation that we must either fight or be pursued. What a Swedish General said to his men, in the reign of Gustavus Adolphus, just at the eve of a battle, is extremely applicable to us at present: Pointing to the enemy, who were marching down to engage them, said he, “My lads, you see those men yonder; if you do not kill them, they will kill you.” If we do not, my Lords, get the better of America, America will get the better of us. We do not fear, at present, that they will attack us at home; but consider, on the other hand, what will be the fate of the Sugar Islands; what will be the fate of our trade to that country. That, my Lords, is a most important consideration; it is the best feather in our wing. The people of America are preparing to raise a navy; they have begun in part; trade will beget opulence, and by that means they will be enabled to hire ships from foreign powers. It is said the present war is only defensive on the part of America. Is that the case? Is the attack on Canada, or the attempt on Halifax, a defensive war? Is the prohibiting all trade and commerce with every other part of the dominions of the British empire—with Ireland, for whom they express such friendly sentiments; is starving the Sugar Islands, acting on the defensive? No; though those people never offended, nor oppressed us, we will distress them, say they, because that will be distressing Great Britain. Are we, in the midst of all the outrages of hostility, of seizing our ships, entering our Provinces at the head of numerous armies, seizing our forts, to stand idle, because we are told this is an unjust war, and wait till they have brought their arms to our very doors? The last Dutch war was generally understood to be unjust; yet that did not prevent us from repelling the invaders when they came up to burn our Navy at Chatham. The causes of the late war were much condemned, but that did not prevent us from pursuing it with vigour. Indeed, the nature of all war is such it ought to be carried on with vigour till the objects which caused it are either obtained, or abandoned as unattainable or not worth pursuing. Neither, I trust, is the case in the present instance; I do not, therefore, consider who was originally wrong; we are now only to consider where we are. The justice of the cause must give way to our present situation; and the consequences which must ensue, should we recede, would, nay, must, be infinitely worse than any we have to dread by pursuing the present plan, or agreeing to a final separation. On those, as well as many other considerations of great weight, I beg leave to differ from the noble Lord who spoke last; for I am satisfied this bill is neither hasty, rash, ruinous, or unjust.

The question was put, “Whether this Bill, with the Amendments, shall pass?”

It was resolved in the affirmative.

A Message was ordered to be sent to the House of Commons, by Mr. Leeds and Mr. Pepys,

To return the said Bill, and acquaint them that the Lords have agreed to the same, with some Amendments; to which their Lordships desire their concurrence.