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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 througlı 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

, by hesitation to declare, that if ever it shall reason and experience, to pursue the be rescinded totally, and if the mode of course which lord Somers and lord Hardtrial for treason shall be restored to the wicke pointed out to be the best for the footing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. It 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 With this view of the question before proportion of crimes and punishments, so us, it may be thought somewhat extraor- that henceforth it will be less penal to dinary that we should now be called upon commit treason than to commit a common to decide whether we shall any longer felony; and the life of the sovereign and retain this safeguard of the constitution, the liberties of the country will be less proor relinquish it for ever ; but the circum- tected than the life and property of the stances which oblige us to decide are also meanest individual. extraordinary. Ti so happened, that in If motives like these could want addithe same parliament which passed the tional weight, it is to be found abundantly law for improving the union in 1708, and in the events of the present times. It is in the same bill which established the law but too manifest that treason will not die, of forfeiture in Scotland, an attempt was nor sleep in the same tomb with the car. made in this House to restrain forfeiture dinał of York; and at such a time as this, in all cases to the life of the offender, or, to throw down the fences and safeguards in other words, to abolish it; but the which defend the throne and our own liwisdom and firmness of lord Somers pre- berties, is to act in defiance of tlre warnvailed on the Lords to stop so 'rash a ing voice of all Europe. Add to this, measure, by suspending the effect of the that the treasons of our days surpass those proposed alteration until after the death of former times, as their aim is wider, of the Pretender ; * hoping (as contem- and their character more malignant. porary historians have said) that the pru- | Their aim is not even masked' under the dence of succeeding parliaments would go pretext of seeking the redress of any spefarther. When the rebellion of 1745 was cific grievance, it is not to obtain any approaching, and a bill was brought in to partial change in the state, it is not for prevent treasonable intercourse with the any distinct reform in our religious esta Pretender's family, lord Hardwicke (fol-blishments, nor for any modification of lowing the example of lord Somers) proposed a clause for again deferring this * See the Extract from the MS. Parlia

mentary Journal of the Hon, Philip Yorke. in See Vol. 6, p. 797,

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 piscũnt.” 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 río 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 pros- any such projects to which they might be tituting their wealth to the support of madly wedded. There was also sometraitors, no honest man will regret that thing in the very time when this measure their property and their lives should fall was proposed, which made it highly una joint sacrifice to the safety of their seasonable. A union was now in agi. country. Impressed with these senti- tation with Ireland, where it had uniformly ments, and urged by these feelings, I have been the policy to instigate rebellion, in presumed to think the present measure order to promote confiscation; and if the proper for the consideration of this com- union should take place, and this law be mittee; - and the effect of the motion kept in force, that abominable policy which I shall have the honour to put into would have new and continued incentives your hands, will be to do away the par to irritate and foment rebellions which ticular provision in the acts of the 7th of might but too easily be provoked in the queen Anne and 17th of George 2nd, present temper of that distracted country. which make the forfeiture for treason ter- The Master of the Rolls could not co: minate with the death of the cardinal of incide in opinion with the learned mein: York,—and to render the laws of forfei. ber who spoke last, and recommended a ture as lasting as its justice is incontro- work of the honourable Mr. Yorke's on vertible, I now move“ That leave begiven to the laws of forfeiture, as one that would bring in a bill to repeal so much of an act, throw much light on the subject under passed in the 7th of queen Anne, and discussion. also so much of an act, passed in the 17th Leave was given to bring in the bill. of king George 2nd, as puts an end to the Forfeiture of Inheritances upon

Attainder June 25. On the order of the day for of Treason after the death of the Pretender going into a committee on the bill, and his Sons."

Mr. Abbot, in moving that the Speaker Dr. Laurence said, that though he bad 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 cou!d 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 con- nexing 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.]


House ; and it is to this, that by the law | else Greenwich hospital would not now of king William, which regulates the trial be in possession of the Derwentwater of treason, many of the most valuable estates, nor would the highlands of Scotprivileges allowed to the party accused, land have received the many great public such as the obligation imposed on the improvements which they have derived prosecutor to produce two witnesses to from similar funds : but as applied to the the same overt act, or one witness to each treasons of the present day, these forof two overt acts of the same kind of trea- feitures must be still more effectual than son, and the right of the prisoner to com- in other times ; inasmuch as Jacobin pulsory process for bringing his own wit- principles by their very nature are most nesses, and the right to make a full de- likely to infect the minds of men newly fence by counsel, were all granted ex. raised to hopes of personal distinction, by pressly in consideration that the treasons newly acquired opulence, which has not to which those considerations apply, are yet attained either the stability or matusuch as work a corruption of blood; and rity upon which settlements usually atso it is expressed, not only in the pream- tach, and such men are generally in themble, but also in every enacting clause of selves too fond of power and domination the law; and if these forfeitures were now to fetter their own fortunes, or pledge to cease, it would be a momentous ques- them to others by irrevocable rights of Lion, whether the subject would not also succession.--Sir, before I sit down, I must lose the most important means of defend request the House to extend its views ing himself at his trial ? and thus they alss to the consequences of this question, who are most desirous of rejecting the bill as they concern the whole empire : it is now proposed, instead of mitigating the important that the sanie law upon state laws of treason, will only be enhancing offences should prevail throughout: the their severity:-With regard to the gene- law which it is now proposed to you, not ral objections which are sometimes urged to establish, but to preserve for Great against this measure, they appear to be Britain, is at present the established law contradictory in themselves ; as they im- of Ireland : and by adopting this bill we pute to it in one point of view, that it shall render the system upon this subject goes too far; and in another, that it falls the same in these two kingdoms, which I short of its own cnd. To those who al. hope and trust we shall soon be accuslege against the law of forfeiture that it tomed to consider as in every respect inis an odious prerogative, tending to con- separably united. fer on the crown such means of oppres


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 Jimits 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 rupt the line of succession, nor did it may, in some instances, be defeated by confound the innocent with the guilty. family settlements; I beg leave to an- Where, then, was the argument which the swer, in the first place, that they are learned gentleman endeavoured to draw at least effectual so far as they go; from analogy? But again, he says it is and in the next place, I by no means wise and expedient to renew these laws, admit that the patrimonial fortunes of and to hold them out in terrorem, that great families are universally settled, or they may deter those who harbour a zeal, fundness and attachment for their chil. I waited till this object was accomplished, dren, from committing crimes against the before we betrayed a total disregard to state. This is urged on the ground of all agreements ? Should it not also be utility, independent of that of justice ; considered that we were not merely but no ground could surely be more about to renew a former act of the legis. untenable. The arguments advanced in Jature? The laws respecting treason had its support evidently led to conclusions of been materially altered and obscured ; a complexion so atrocious, that he trusted and these alterations might be looked they could exert no influence over the upon as snares laid for the people, though House, or on the mind of any man that by some they were commended, because, was even slightly tinctured with justice if these laws were too plain, the disaffectand humanity. These arguments were ed, it was said, might know too well what' built upon a principle of terror, not on they were about. But we ought to be the principles of the constitution; and the aware of acceding to such proposals principle of terror was 'undoubtedly alien under the idea that we were only doing from the breasts of Englishmen, as well what had been done on similar occasions as from the spirit of the British constitu- arising from similar causes. Would it not tion; it was not usuał <for the throne of be enough to renew those laws at their England to be armed with terror; its natural time of expiring, if then it should wonted guard and shield was the attach- appear to be wise and expedient so to ment and affection of the nation; but it do? He hoped and trusted therefore, seemed to be no inferior or subordinate that as no urgent ground had been object with the present administration, to proved for the immediate necessity of eradicate the throne from the hearts of the measure, we should not be induced the people, and to plant it upon their to adopt it, on the supposition that we necks. With what effect or advantage were merely adopting what had been in this change would be effected, time alone force before. could disclose. Here it might not be im- Mr. Jolliffe considered the measure as proper for the House to recollect what the most unjust, severe, and cruel, that had been the conduct of this forgiving had ever entered into the mind of a human English people, when a king of England being, and one which would disgrace the had been expelled from the throne for code of any country under heaven. It the various cruelties and tyrannies which proceeded on a very false supposition ; he had exercised. Did that English people for it was ridiculous to imagine that a exterminate his whole race, for the delin- man who had no fear of personal danger, quency of one man? No; they chose would have any for those who would the next heir of the same family, whom come after him. It was further nugatory, they placed upon tbe throne. From this inasmuch as its object could be totally instance and example there was some defeated by a settlement of the property room to learn a lesson of lenity, wisdom, previously to the owner's entering upon and moderation. But it seemed that the any treasonable attempt. But what prindanger was now greater and more immi- cipally weighed with him was its flagrant nent from the contagion of Jacobin princi- injustice. He would put the case, that ples; but no arguments had been offered he himself were foolish enough to embark, to prove the real existence of these dan- in a conspiracy to overthrow the governgers; and he trusted that gentlemen ment, and that his son, who was now in would not be induced to put their estates the army, would continue, 'as he had no in jeopardy from the dread and ground doubt he would, faithful to his allegiance, less apprehension of these chimerical dan- and do every thing to counteract that' gers,

while they would expose their fami- conspiracy-by this measure the relies and children to real ones. They ward of his fidelity would be the stripping should therefore observe, that the conse- him of all his paternal inheritance, and quences of the present measure must be leaving him to want and beggary. dreadful and extensive, but the policy Mr. 1. H. Browne regarded the argu. and wisdom of it doubtful and uncertain. ment drawn from the punishment of innoIf there was any thing that could add to cence as sophistical, for it was impossible his unwillingness to adopt it, it was the to inflict any punishment, however just, moment at which it was proposed. Ire- that did not, more or less, expose innoland was said to be on the eve of a union cence to suffering and distress. A war with this country. Ought we not to have might be undertaken on the most just

grounds, and yet soldiers who pe struments of his existence, were bound to rished in the contest were innocent render it as comfortable as possible. This men. Men might, in the phrenzy of pas-was deeply implanted by the author of sion and disappointment, enter into cri- nature in the mind of man. He did not minal projects against the peace of society, wish, however, to enter into an abstract but a law of the kind now proposed was disquisition of natural rights; he would calculated to produce that sober and com- assume, for the sake of argument, that prehensive reflexion which would ap- the right of inheritance was merely a civil pease the first feelings of resentment. right, and ask the question, how the The present laws of treason were singu- safety of the state could be promoted by larly mild, and in no other case was the confiscating the livelihood of an irres conviction of a criminal a matter of so proachable and afflicted widow, of harmmuch difficulty.

less orphans, and unborn posterity. The Mr. Hobhouse, said, that gentlemen good of the state, so far from requiring would do well to consider to what extent such severities, called loudly for the the measure went. Its object was not abolition of them. The children stripped, merely to give a permanent continuance of their inheritance, would detest the goin cases of high treason, to the law of vernment which sanctioned such harshforfeiture, but also to corruption of ness and injustice; the same odium would blood; the former of which was designed descend from generation to generation ; to bring present poverty and disgrace thus whole families would for ages be upon the offspring of a man attainted of alienated from their country. Was this that crime, the latter to doom the chil. a method of giving additional security to dren, the children's children, and future a state ? No, Sir; affection, not terror, generations to perpetual indigence and is the best foundation of a monarch's dishonour. Many eminent persons had throne. This sentiment was well exa considered forfeiture as a salutary terror, pressed in the preamble to the statute of calculated for the protection of the state, the 1st of queen Mary. It recited, that but entertained an abhorrence of the cor-" The state of every king consists more ruption of blood. The bill aimed at the assuredly in the love of the subject tos perpetuation of both. For his own part he wards the prince, than in the dread of approved of neither. With respect to the laws made with rigorous pains ; and that forfeiture of the traitor's lands and tene- laws, made for the preservation of the ments, so that his children could not suc- commonwealth, without great penalties, ceed to the possession, the observation of are more often obeyed and kept, than the hon. gentleman (Mr. Jolliffe) was laws made with extreme punishment." undeniable. Was there a maxim of Happy would it have been for her subnatural justice more clear than this, that jects, if that bigotted princess had always no man ought to be punished, except for acted conformably to the just and liberal his own fault. Could any thing be more views which she seemed to have enteriniquitous than to visit the sins of the tained at the beginning of her reign. The fathers upon the children? It appeared hon. member had also contended, that to him less unjustifiable to copy the there was no injustice in depriving, by this Chinese laws, and to make parents suffer law of confiscation, a virtyous family of for the offences of their children, because their means of support, because it was im. the vices of children are often ascribable to possible to punish any offender without a neglected or faulty education, than to occasioning some detriment to his family, iņflict punishment upon an innocent child If a fine were imposed upon a criminal, it on account of the guilt of his father. took away perhaps a sum necessary for The hon. gentleman (Mr. Browne), had the maintenance of his wife and children, affirmed, that children had no natural If imprisonment were his punishment, it right to succeed to the property of their deprived them of the fruits and advanparents ; that the transmission of it from tages of his industry; if death were the senfather to son was the mere creature of tence, bis execution necessarily plunged civil society, the mere effect of municipal the whole circle of his relations into the institution; and, therefore, the state was deepest distress. This was undoubtedly entitled to take it away whenever the true; but it must be remembered, that public safety required. Now, in his opi- the misfortuner sustained by the family in nion, the child had a just claim to inherit such cases, are the natural and necessary the property of those, who, being the in, consequences of the punishment inflicted

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