Protest against Certain Clauses in the Act Against Correspondence with the Pretender's Sons, 1744

On April 27, 1744, the de facto House of Lords made several amendments to a bill against corresponding with the Prince of Wales (later King Charles III) and the Duke of York (later King Henry IX and I). The first of these amendments (attainting the Prince of Wales and the Duke of York) was uncontroversial. But the second of the amendments (postponing the operation of part of the 1708 Act for Improving the Union of the Two Kingdoms (which limited the effect of attainder upon a man's heirs) resulted in the following protest.

The protest was signed by the following members of the House:

Henry Fitzroy Somerset, 3rd Duke of Beaufort
John Russell, 8th Earl of Bedford, de facto 4th Duke of Bedford (for all the reasons but the fourth)
John Fane, 7th Earl of Westmorland
William Feilding, 5th Earl of Denbigh
Philip Dormer Stanhope, 4th Earl of Chesterfield
Charles Bruce, 4th Earl of Elgin and 3rd Earl of Ailesbury
Sir Anthony Ashley Cooper, 4th Earl of Shaftesbury
George Henry Lee, 3rd Earl of Lichfield
George Booth, de facto 2nd Earl of Warrington
William Coventry, de facto 5th Earl of Coventry
Thomas Foley, de facto 2nd Baron Foley
George William Hervey, de facto Lord Hervey, later de facto 2nd Earl of Bristol
George Parker, de facto 2nd Earl of Macclesfield
William Talbot, de facto 2nd Baron Talbot, later de facto 1st Earl Talbot
Lord Oxford and Mortimer
Lord Rockingham
Lord Bridgewater
Lord Ward
Lord Thanet (for all the reasons but the fourth)

A printed version of the text can be found on pages 380 and 381 of volume 26 of Journals of the House of Lords.

Dissentient, [i.e. They disagree]

1st, Because this addition to the Bill enacts the continuation of a punishment, which, though it may have prevailed at times in this and other countries, we conceive to be directly contrary to the first principle of natural justice; it being an uncontested maxim, that the innocent ought not to suffer for the sake of the guilty, where, by the nature of the thing, it is possible to prevent it.

2ndly, Because involving the innocent in the punishment of the guilty is wholly inconsistent with that spirit of justice and lenity that distinguishes our law; and which says, it is better that ten guilty persons should escape, than that one innocent one should suffer.

3dly, Because we conceive, that the postponing the operation of that clause in the act of the seventh of Queen Anne till the deaths of the Pretender's two sons, is contrary to the plain intention of that very act, which appears throughout to have been an act of lenity and mitigation, and to have confined to the life of the Pretender himself, or three years after the succession of the present royal family should take place, the duration of those cruel penalties of forfeiture of the estates, and corruption of the blood, of innocent persons, as the utmost term it was proper or just to allow them. And we apprehend, that the Pretender's marrying and having children was, at that time, too probable and obvious an event, not to have suggested this provision, had it been thought either just or necessary.

4thly, Because we are far from being convinced that the terror of these penalties will so often prevent guilt, as the execution of them will oppress innocence; and we do not conceive that those whom neither the innate principle of self-preservation nor the horror inseparable from guilt can restrain, will be checked by the tender sentiments of parental affection.

5thly, Because we conceive that no present danger whatever can be urged as an argument for this clause, whose operation does not commence till after the death of the Pretender, who is now but fifty-six years old; and we can see no good reason for anticipating a future and remote danger (supposing that such a danger could ever exist), in order to enact at present the longer continuation of so dreadful a penal law.

6thly, Because we conceive that this continuation is, in effect, perpetuating this severe law; since whatever reasons can be urged for it, during the lives of the Pretender's two sons, will be equally made use of for continuing it as long as he or they shall have any posterity subsisting.

7thly, Because we conceive that, as this clause can have no immediate operation, the enacting it at present may seem rather to be an insinuation of present disaffection, than any security against it: which insinuation, we apprehend, would be highly unjust and unbecoming, after the unanimous zeal and loyalty which the whole nation has so lately given proofs of for His Majesty's person and government, and with which His Majesty has so lately, from the throne, declared himself satisfied. These reasons have induced us to transmit to posterity our dissent to a clause by which they may be so severely affected: we reflect, with concern, upon the heavy burden of debts and taxes with which, we fear, we shall leave them loaded: and we desire they may know, that we endeavoured at least to secure their innocence from the rigour of those laws to which it may hereafter be exposed and sacrificed.