24th.—General Anstruther’s cause came on, and several witnesses attended, according to the orders of the House. Sir Henry Erskine moved to call in Brigadier Ofarel. Sir William Yonge objected to it, saying, “He knew that what he was going to propose would be disagreeable both to the gentleman who had brought the charge, and to the gentleman accused; but that it concerned the honour of the whole House, and therefore he must first desire to know of the gentlemen of the Law, whether the crimes specified were not comprehended within the pardon of the late Act of Grace.” Sir Henry Erskine protested that he had no vindictive motive, but that he must desire to have his cause heard; and asked whether the Act of Grace was not known, or had not been mentioned before, that now he was prepared to prove his accusation, he was to be put off in this injurious manner? General Anstruther agreed with him in desiring to have the cause heard, which he affirmed was a malicious, false, and scandalous accusation, particularly in charging him with subornation of witnesses, of which, he said, none could be guilty but they who charged it on others.

The Attorney-General said, “He must enter his protest against complaints in these circumstances; that there were two very striking in this complaint; one, that the charge exhibited was of a private nature; the other, that the facts alleged were previous in time to the Act of Indemnity. That the House of Commons is not a Court of Appeal; that this ‘is’ a case of false imprisonment; that there are neither general nor particular words in the Act of Grace to except it; that no punishment can follow, even if the General should be convicted, and we should address for it. That the two Houses of Parliament can have no mental reservation to pardon for the King, and not for themselves; and, lastly, that the House of Commons is not a Court of Inquiry into the characters of its own members.” Sir Henry Erskine said, “That he supposed Anstruther had been apprised of this objection, or he would not have used such epithets on the charge, if he had believed the witnesses would be heard, who would prove the allegations; but that he yet could furnish crimes, from which the Act of Grace would not screen him.”

Lord George Sackville[107] said, “The Officers were concerned to have this affair inquired into; that if the General did not disculpate himself, could Officers with honour serve under him? that he was sensible of the difficulty of not being able to punish him; and therefore would give his negative to calling in Ofarel, but proposed to have Anstruther tried by a Board of General Officers.” Henley (the profession out-weighing the faction in him) declared the House could exercise no jurisdiction in this case, where the crimes were misdemeanours; and that even if both parties should consent to go before a Judge, he would be bound ex-officio to dismiss the complaint. Lord Strange,[108] a busy young Lord, very disinterested, often quick, as often injudicious, and not the less troublesome for either, proposed at least to declare, that the Act of Grace was the reason of not proceeding; and that if the House would take no cognizance of this affair, it might be heard by the Board of Officers. Nugent, too, was tender of infringing the Act of Grace, and sorry if he had been one to call improperly on Sir Harry to make the charge. He said, “He had been told that offences against the Mutiny Bill were to be pardoned only from the year 43, but that the crimes in question were antecedent to that era; if not, that the accused must plead the Act. That for himself he should vote for Lord George’s Motion.”

Anstruther said, “I plead nothing as to the Act of Grace, but desire the House to take it into their consideration.” Sir Richard Loyd, a lawyer, said, “This was a misdemeanour, and a pardoned one; that the prosecution of it now would affect numbers. An angry court would have acted so formerly; should a House of Commons act with such narrow microscopic eyes? We want no pardon; many of our constituents may. An Act of Grace does not merely take away punishment, but restores a criminal so fully, that to call a pardoned Rebel perjured, he would have an action. But it is said, we may inspect: for what end, if no consequence can follow? The Clergy took this up once, on the misbehaviour of one of their own body, from whom they would have taken orders, saying, they could not serve with him; but the King’s Bench deeming it a punishment, would not suffer it. In the reign of James II. a Mr. Bayne was sequestered by the House for his unworthiness; but was restored to his seat by an Act of Grace. If you have a mind to hear angry words for some hours, without doing anything, you certainly may, but his offence is neither against the Mutiny Bill, nor within the excepted term; nor can he, being included within the Act of Grace, wave the advantage of it.” He concluded, begging pardon of the House with a sneer, for endeavouring to stop an inquiry.

Mr. W. Pitt said that if he had wanted information upon the Act of Grace, he should have fully received it, though he had never thought of infringing that; but that he had been desirous of inquiring into the nature of the General’s tyranny, in order to new model the Mutiny Bill, if it were necessary. That he wanted to see the minutes of the Court-Martial for information, not for foundation of a criminal prosecution. That without the impediment of the Act of Grace, he should be against calling in Ofarel, as the business of the House was not to hear causes that are without our jurisdiction, but to find deficiencies in our laws, and remedies for them. That, if this infringed the liberty of two members, at least it was relative to what had happened before they were so. That he had perceived there was something in the dark, yet had not been the loudest to call for what others, whose situation was more connected with military matters, might know better. That to send this to a Board of Officers would be constituting the crime anew: that all he desired was, that Governors in our Plantations and Foreign Garrisons might know that the prosecution of this affair was stopped by the Act of Grace, and might tremble for the future. The hint towards the latter end of the speech was levelled at Fox, the Secretary at War, an employment that Pitt professed wishing to have preferably to Paymaster, though the latter ‘was’ so much more considerable in profit, as it would give him an introduction to the closet; the very reason why the King had refused it to him. Pitt was so much mortified at the King’s never speaking to him, that above a year before this the Pelhams had with great difficulty obtained a word to him at the levee.

Sir John Mordaunt, an Officer of gallantry, with some wit, said, he had early spoke his mind for hearing this cause, and had come determined to hear the witnesses, but had changed his opinion, because of the impropriety there would be of letting him continue a member if he was proved guilty, an objection that would hold equally against trying him by a Board of General Officers; a trial that he disliked, as to clear the reputation of soldiers, he wished to have them tried by any but Officers. That he saw the Crown would be under the same difficulties as the House, and therefore he agreed with Lord Strange’s motion for declaring the Act of Grace the impediment. Fazakerley, a tiresome Jacobite lawyer, was clear that he was comprized within the general pardon; and yet for the honour of the House was for doing something, and that something was to try him, that the King might not trust him any longer.

Mr. Pelham said, “That if he were for trying him by a Board of Officers, he should not be hindered by the Act of Grace, which had been originally his opinion as the properest way of carrying the cause before the King; but that it must now rest here, as all the lawyers were agreed on its being a violation of the general indemnity. That so far from desiring with Fazakerley that the King should remember it, he wished the whole case could be obliterated; and that this might go no further between the two persons, whom he begged to bury in oblivion their private resentments, as the House was obliged to do those of the public.” The Speaker took up this, observed on the harsh words that had passed, and desired they would be publicly reconciled. Sir Henry Erskine answered, “The General gave the offence.” The General replied, “I gave no offence: I said the accusation was false and malicious; does not my very denial of the charge say the same?” The Chair insisted on their engaging to carry this quarrel no further; to which Anstruther answered, “I shall take no further notice.” The Speaker said, “Do you give your honour?” Anstruther; “I do.” Sir Harry Erskine said pertly, “I thought he would have made an apology.” Sir William Yonge interrupted him, and told him, he must not enter into a discussion of what had passed; and the Chair insisted on Sir Harry’s giving the proper assurances; on which Sir Harry at last said dryly, “I give my honour in consequence.” Lord Strange then repeated his Motion for a declaration of the reasons of not proceeding.

Mr. Fox told him, “He was sorry to hear such a Motion after so wise a conclusion; and that it would be giving a reason for all, which was not the reason of many. That the accusation was nothing before reduced to writing; that he still thought it a frivolous affair; that it could not be said Sir Harry was unwilling to present the charge, as he had repeated the accusation day after day; that Anstruther could call it nothing but false or true; that he had frequently been intreated by the General to get the cause heard; and would now give him a word of comfort, that he had thought him much more guilty before the charge was presented—‘and’ now did not think him guilty of a thousandth part of what he had been accused. That as to the Motion, no vote ever passes for a single reason; that this would be introducing a new practice; and he concluded with asking whether the House would permit Anstruther to enter upon the Journals a complaint against the charge?” Sir Henry Erskine said to that, “That there were accusations in the answer as well as in the charge.” General Oglethorpe[109], of whom it was uncertain whether he was a Whig or a Jacobite, whether very brave or a coward, for he had fought several duels, and had run away in the Rebellion; very certain that he was a troublesome and tiresome speaker, though even that was now and then tempered with sense; took notice that if it were mentioned in the votes that the Act of Grace had been read apropos to this Debate, it would sufficiently explain without a further comment why the affair was dropped. Lord Strange owned himself content with this remark, and withdrew his Motion. The House adjourned at half an hour after eight.

FOOTNOTES:

[86] Robert Walpole, the second Earl of Orford, Auditor of the Exchequer, Master of the Fox-hounds, Ranger of Richmond New Park, and Knight of the Bath, died in March, 1751.