change, in my opinion, much to be re-extinction of forfeitures until after the gretted; and I speak not this lightly; I death of the Pretender's sons. And the have for this opinion the authority of sir law of forfeiture now depends upon the Michael Foster, a great authority upon life of the cardinal of York, the last desthese subjects, who plainly condemns it cendant of the house of Stuart, an unforas detrimental to the interests of the pub- tunate fugitive, who has lived through lic, which (he says, and truly says) are three-fourths of the present century, and deeply concerned in every prosecution of whose existence (if he be yet living) this kind, which is well founded: and I cannot, by the course of nature, be of have also a still greater authority, that of any long duration. This is the circumparliament itself, which has since found it stance which obliges parliament now to necessary to rescind this provision in all decide this question: and we are called the inferior sorts of treason; and I have no upon, as I contend, by every motive of hesitation to declare, that if ever it shall reason and experience, to pursue the be rescinded totally, and if the mode of course which lord Somers and lord Hardtrial for treason shall be restored to the wicke pointed out to be the best for the footing upon which it stood by the act of country, and to re-establish the law of king William, it will be a great improve- forfeiture for ever. Unless we do so esment in the administration of criminal tablish it, it is clear that we shall violate justice. But be these matters as they one of the fundamental principles of our may, thus much appears incontestably, whole criminal code; for forfeiture (or that whatever changes have taken place escheat, which is of the same nature) runs in the law of treason, the principle of for- through every branch of it: it is a confeiture has been preserved throughout, sequence annexed to high treason, petty and confirmed in the best times; at a time treason, felony, flight, and outlawry. In when the transactions of the Revolution felonies, the day and year to the king, were fresh in every man's mind, this prin- and the escheat to the lord, will still reciple was acknowledged as fit to prevail; main in force, even if we suffer these forand at the union it was also carried in its feitures to cease in treason; and if we do fullest extent into Scotland. so, we shall invert the whole scale and proportion of crimes and punishments, so that henceforth it will be less penal to commit treason than to commit a common felony; and the life of the sovereign and the liberties of the country will be less protected than the life and property of the meanest individual. With this view of the question before us, it may be thought somewhat extraordinary that we should now be called upon to decide whether we shall any longer retain this safeguard of the constitution, or relinquish it for ever; but the circumstances which oblige us to decide are also extraordinary. It so happened, that in the same parliament which passed the law for improving the union in 1708, and in the same bill which established the law of forfeiture in Scotland, an attempt was made in this House to restrain forfeiture in all cases to the life of the offender, or, in other words, to abolish it; but the wisdom and firmness of lord Somers prevailed on the Lords to stop so rash a measure, by suspending the effect of the proposed alteration until after the death of the Pretender; * hoping (as contemporary historians have said) that the prudence of succeeding parliaments would go farther. When the rebellion of 1745 was approaching, and a bill was brought in to prevent treasonable intercourse with the Pretender's family, lord Hardwicke (following the example of lord Somers) proposed a clause for again deferring this See Vol. 6, p. 797, If motives like these could want additional weight, it is to be found abundantly in the events of the present times. It is but too manifest that treason will not die, nor sleep in the same tomb with the cardinal of York; and at such a time as this, to throw down the fences and safeguards which defend the throne and our own liberties, is to act in defiance of the warning voice of all Europe. Add to this, that the treasons of our days surpass those of former times, as their aim is wider, and their character more malignant. Their aim is not even masked under the pretext of seeking the redress of any specific grievance, it is not to obtain any partial change in the state, it is not for any distinct reform in our religious establishments, nor for any modification of See the Extract from the MS. Parliamentary Journal of the Hon. Philip Yorke. Vol. 13, p. 704. either branch of the legislature, but for the adoption of such a precaution. It nothing less than one general sweeping was moreover to be remembered that it and indiscriminate destruction of the was a particular and leading point in the whole constitution together. Non li- terms of the union of Scotland with Eng bertatem, sed sanguinem nostrum concu- land, that the laws of forfeiture should be piscunt." The malignancy of their cha- abrogated. It was then stipulated that racter is distinguishable by the restless the laws respecting treason should respirit which it infuses into the lowest main the same for the two countries; and orders of the people, encouraging them to this doctrine was supported not only by take up arms, and teaching them that every Scotch member in the debate on they have great and powerful partisans the bill for the improvement of the union, and leaders who are secretly prepared to but also by the Whig party, and by thirseize the favourable moment for showing teen out of the sixteen Scotch peers in themselves openly at their head, when they the other House of Parliament. The can hope to do so with impunity. Some majority were always for abrogating that such leaders were found in Ireland; and law. At the present period he saw no they have perished: that such may dis- necessity for continuing that law in terrocover themselves in England, is but too rem against persons of rank and property much to be apprehended from the report who might foment conspiracies, and coun. before us; and if any such shall appear, tenance and support traitors; for if there who bear hereditary honours, it is fit that were any men of rank and wealth who the law of forfeiture should extinguish could abet such designs, on those men for ever the name which they have dis- the laws of forfeiture, &c. could make no graced; or if there be others who are as-impression, to induce them to abandon piring to distinction and power by prostituting their wealth to the support of traitors, no honest man will regret that their property and their lives should fall a joint sacrifice to the safety of their country. Impressed with these sentiments, and urged by these feelings, I have presumed to think the present measure proper for the consideration of this committee; and the effect of the motion which I shall have the honour to put into your hands, will be to do away the particular provision in the acts of the 7th of queen Anne and 17th of George 2nd, which make the forfeiture for treason terminate with the death of the cardinal of York, and to render the laws of forfeiture as lasting as its justice is incontrovertible, I now move "That leave be given to bring in a bill to repeal so much of an act, passed in the 7th of queen Anne, and also so much of an act, passed in the 17th of king George 2nd, as puts an end to the Forfeiture of Inheritances upon Attainder of Treason after the death of the Pretender and his Sons." any such projects to which they might be madly wedded. There was also something in the very time when this measure was proposed, which made it highly unseasonable. A union was now in agitation with Ireland, where it had uniformly been the policy to instigate rebellion, in order to promote confiscation; and if the union should take place, and this law be kept in force, that abominable policy would have new and continued incentives to irritate and foment rebellions which might but too easily be provoked in the present temper of that distracted country. The Master of the Rolls could not co incide in opinion with the learned member who spoke last, and recommended a work of the honourable Mr. Yorke's on the laws of forfeiture, as one that would throw much light on the subject under discussion. Leave was given to bring in the bill. June 25. On the order of the day for going into a committee on the bill, Mr. Abbot, in moving that the Speaker Dr. Laurence said, that though he had do leave the chair, recalled the attention not made up his mind upon the present of the House to the general nature of the important question, he was ready to say bill. After recapitulating the principal that he saw nothing in the nature of the points of his former speech, he continued. measure proposed that could effectually nearly as follows:-But, Sir, besides the prevent treason from taking place. There necessity of rendering the law consistent, was nothing peculiar in the nature and and besides the specific necessity for ancharacter of the present treasonable connexing this kind of punishment to treason, spiracies (which no one more cordially there is another consideration to which I execrated than himself) that called for must request the serious attention of the [VOL. XXXIV.] [3 Z] House; and it is to this, that by the law of king William, which regulates the trial of treason, many of the most valuable privileges allowed to the party accused, such as the obligation imposed on the prosecutor to produce two witnesses to the same overt act, or one witness to each of two overt acts of the same kind of treason, and the right of the prisoner to compulsory process for bringing his own witnesses, and the right to make a full defence by counsel, were all granted expressly in consideration that the treasons to which those considerations apply, are such as work a corruption of blood; and so it is expressed, not only in the preamble, but also in every enacting clause of the law; and if these forfeitures were now to cease, it would be a momentous question, whether the subject would not also lose the most important means of defend ing himself at his trial? and thus they who are most desirous of rejecting the bill now proposed, instead of mitigating the laws of treason, will only be enhancing their severity. With regard to the general objections which are sometimes urged against this measure, they appear to be contradictory in themselves; as they impute to it in one point of view, that it goes too far; and in another, that it falls short of its own end. To those who al lege against the law of forfeiture that it is an odious prerogative, tending to confer on the crown such means of oppres- Sir Francis Burdett began by observing, sion as are not to be endured in a free that as the present question related only government, I beg leave to answer, that to the higher orders of the country, it by the British constitution the crown is could not well be suspeeted that in the also invested with another prerogative, discussion of such a topic, it was his and is bound by the most solemn obliga- object to court popular applause. He tion to exercise it-I mean the preroga- had listened with attention to the argutive of mercy; a quality which is unknown ments urged by the learned gentleman in to republican forms of government, and favour of its adoption, but he expected has no place in any code of jacobin phi- to have heard much more forcible ones lanthropy: and we have ample testimony than those entered on in support of the in these times, that this is no dormant measure. In the first place, the learned prerogative, and that our ancestors have gentleman expressed a wish that the law done wisely by intrusting the crown with respecting high treason should be uniform, the power of assigning the measure and and the same as it now exists with respect limits of grace and restitution.-To those to felons. The law on this head was who contend, on the other hand, that already sufficiently severe and sanforfeitures are not only odious, but in-guinary: yet it did not attempt to intereffectual to their own end, because they may, in some instances, be defeated by family settlements; I beg leave to answer, in the first place, that they are at least effectual so far as they go; and in the next place, I by no means admit that the patrimonial fortunes of great families are universally settled, or | else Greenwich hospital would not now be in possession of the Derwentwater estates, nor would the highlands of Scotland have received the many great public improvements which they have derived from similar funds: but as applied to the treasons of the present day, these forfeitures must be still more effectual than in other times; inasmuch as Jacobin principles by their very nature are most likely to infect the minds of men newly raised to hopes of personal distinction, by newly acquired opulence, which has not yet attained either the stability or maturity upon which settlements usually attach, and such men are generally in themselves too fond of power and domination to fetter their own fortunes, or pledge them to others by irrevocable rights of succession.-Sir, before I sit down, I must request the House to extend its views also to the consequences of this question, as they concern the whole empire: it is important that the same law upon state offences should prevail throughout the law which it is now proposed to you, not to establish, but to preserve for Great Britain, is at present the established law of Ireland: and by adopting this bill we shall render the system upon this subject the same in these two kingdoms, which I hope and trust we shall soon be accustomed to consider as in every respect inseparably united. rupt the line of succession, nor did it confound the innocent with the guilty. Where, then, was the argument which the learned gentleman endeavoured to draw from analogy? But again, he says it is wise and expedient to renew these laws, and to hold them out in terrorem, that they may deter those who harbour a zeal, waited till this object was accomplished, before we betrayed a total disregard to all agreements? Should it not also be considered that we were not merely about to renew a former act of the legis lature? The laws respecting treason had been materially altered and obscured; and these alterations might be looked upon as snares laid for the people, though by some they were commended, because, if these laws were too plain, the disaffected, it was said, might know too well what' they were about. But we ought to be aware of acceding to such proposals under the idea that we were only doing what had been done on similar occasions arising from similar causes. Would it not be enough to renew those laws at their natural time of expiring, if then it should appear to be wise and expedient so to do? He hoped and trusted therefore, that as no urgent ground had been proved for the immediate necessity of the measure, we should not be induced to adopt it, on the supposition that we were merely adopting what had been in force before. fondness and attachment for their children, from committing crimes against the state. This is urged on the ground of utility, independent of that of justice; but no ground could surely be more untenable. The arguments advanced in its support evidently led to conclusions of a complexion so atrocious, that he trusted they could exert no influence over the House, or on the mind of any man that was even slightly tinctured with justice and humanity. These arguments were built upon a principle of terror, not on the principles of the constitution; and the principle of terror was undoubtedly alien from the breasts of Englishmen, as well as from the spirit of the British constitution; it was not usual for the throne of England to be armed with terror; its wonted guard and shield was the attachment and affection of the nation; but it seemed to be no inferior or subordinate object with the present administration, to eradicate the throne from the hearts of the people, and to plant it upon their necks. With what effect or advantage this change would be effected, time alone could disclose. Here it might not be improper for the House to recollect what had been the conduct of this forgiving English people, when a king of England had been expelled from the throne for the various cruelties and tyrannies which he had exercised. Did that English people exterminate his whole race, for the delinquency of one man? No; they chose the next heir of the same family, whom they placed upon the throne. From this instance and example there was some room to learn a lesson of lenity, wisdom, and moderation. But it seemed that the danger was now greater and more imminent from the contagion of Jacobin principles; but no arguments had been offered to prove the real existence of these dangers; and he trusted that gentlemen would not be induced to put their estates in jeopardy from the dread and groundless apprehension of these chimerical dangers, while they would expose their families and children to real ones. They should therefore observe, that the consequences of the present measure must be dreadful and extensive, but the policy and wisdom of it doubtful and uncertain. If there was any thing that could add to his unwillingness to adopt it, it was the moment at which it was proposed. Ireland was said to be on the eve of a union with this country. Ought we not to have Mr. Jolliffe considered the measure as the most unjust, severe, and cruel, that had ever entered into the mind of a human being, and one which would disgrace the code of any country under heaven. It proceeded on a very false supposition; for it was ridiculous to imagine that a man who had no fear of personal danger, would have any for those who would come after him. It was further nugatory, inasmuch as its object could be totally defeated by a settlement of the property previously to the owner's entering upon any treasonable attempt. But what principally weighed with him was its flagrant injustice. He would put the case, that he himself were foolish enough to embark in a conspiracy to overthrow the government, and that his son, who was now in the army, would continue, as he had no doubt he would, faithful to his allegiance, and do every thing to counteract that conspiracy-by this measure the reward of his fidelity would be the stripping him of all his paternal inheritance, and leaving him to want and beggary. Mr. I. H. Browne regarded the argument drawn from the punishment of innocence as sophistical, for it was impossible to inflict any punishment, however just, that did not, more or less, expose innocence to suffering and distress. A war might be undertaken on the most just grounds, and yet soldiers who perished in the contest were innocent men. Men might, in the phrenzy of passion and disappointment, enter into criminal projects against the peace of society, but a law of the kind now proposed was calculated to produce that sober and comprehensive reflexion which would appease the first feelings of resentment. The present laws of treason were singularly mild, and in no other case was the conviction of a criminal a matter of so much difficulty. Mr. Hobhouse said, that gentlemen would do well to consider to what extent the measure went. Its object was not merely to give a permanent continuance in cases of high treason, to the law of forfeiture, but also to corruption of blood; the former of which was designed to bring present poverty and disgrace upon the offspring of a man attainted of that crime, the latter to doom the children, the children's children, and future generations to perpetual indigence and dishonour. Many eminent persons had considered forfeiture as a salutary terror, calculated for the protection of the state, but entertained an abhorrence of the corruption of blood. The bill aimed at the perpetuation of both. For his own part he approved of neither. With respect to the forfeiture of the traitor's lands and tenements, so that his children could not succeed to the possession, the observation of the hon. gentleman (Mr. Jolliffe) was undeniable. Was there a maxim of natural justice more clear than this, that no man ought to be punished, except for his own fault. Could any thing be more iniquitous than to visit the sins of the fathers upon the children? It appeared to him less unjustifiable to copy the Chinese laws, and to make parents suffer for the offences of their children, because the vices of children are often ascribable to a neglected or faulty education, than to inflict punishment upon an innocent child on account of the guilt of his father. The hon. gentleman (Mr. Browne), had affirmed, that children had no natural right to succeed to the property of their parents; that the transmission of it from father to son was the mere creature of civil society, the mere effect of municipal institution; and, therefore, the state was entitled to take it away whenever the public safety required. Now, in his opinion, the child had a just claim to inherit the property of those, who, being the in struments of his existence, were bound to render it as comfortable as possible. This was deeply implanted by the author of nature in the mind of man. He did not wish, however, to enter into an abstract disquisition of natural rights; he would assume, for the sake of argument, that the right of inheritance was merely a civil right, and ask the question, how the safety of the state could be promoted by confiscating the livelihood of an irreproachable and afflicted widow, of harmless orphans, and unborn posterity. The good of the state, so far from requiring such severities, called loudly for the abolition of them. The children stripped, of their inheritance, would detest the government which sanctioned such harshness and injustice; the same odium would descend from generation to generation; thus whole families would for ages be alienated from their country. Was this a method of giving additional security to a state? No, Sir; affection, not terror, is the best foundation of a monarch's throne. This sentiment was well expressed in the preamble to the statute of the 1st of queen Mary. It recited, that "The state of every king consists more assuredly in the love of the subject to wards the prince, than in the dread of laws made with rigorous pains; and that laws, made for the preservation of the commonwealth, without great penalties, are more often obeyed and kept, than laws made with extreme punishment." Happy would it have been for her subjects, if that bigotted princess had always acted conformably to the just and liberal views which she seemed to have entertained at the beginning of her reign. The hon. member had also contended, that there was no injustice in depriving, by this law of confiscation, a virtuous family of their means of support, because it was impossible to punish any offender without occasioning some detriment to his family. If a fine were imposed upon a criminal, it took away perhaps a sum necessary for the maintenance of his wife and children, If imprisonment were his punishment, it deprived them of the fruits and advan tages of his industry; if death were the sen tence, his execution necessarily plunged the whole circle of his relations into the deepest distress. This was undoubtedly true; but it must be remembered, that the misfortunes sustained by the family in such cases, are the natural and necessary consequences of the punishment inflicted |