Abbildungen der Seite

apon the delinquent, and not the effect of on account of the rigour attendant on any law against themselves. And strange, this worst consequence of attainder, that indeed, did that man reason who, because many high authorities were desirous of a convict could not endure any kind of putting an end to corruption of blood. punishment, without affecting in a greater Mr. Justice Blackstone had'avowed that or less degree those with whom he was opinion. He said that " as every other opnearly connected, would therefore aggra. pressive mark of feudal tenure is now vate their sorrows.-Enough, he thought, happily worn away in these kingdoms, it had been said to make it apparent, that is to be hoped that this corruption of nothing could palliate the injustice of blood, with all its connected consequences taking from the child of a traitor his pa- not only of present escheat, but of future terval inheritance; and if that were not incapacities of inheritance, even to the vindicable, still less so was corruption twentieth generation, may, in process of of blood. An example might, perhaps, time, be abolished by act of parliament, as serve to render this subject clear to those it stands upon a very different footing from who are unaccustomed to legal investiga- the forfeiture of lands for high treason, tion. A grandfather is seized of an es- affecting the king's person or government. tate in fee; his son, who has a family, And, indeed, the legislature has, from commits treason, is tried, convicted, time to time, appeared very inclinable to judged, attainted, and executed. By the give way to so equitable a provision, &c." law of forfeiture, his children cannot suc- What were the sentiments expressed by a ceed to his lands or tenements in the lord Auckland in his excellent treatise on course of descent; by the horrid doc. theprinciples of the penal law ? He agreed trine of corruption of blood, the inno. with Blackstone, and declared that “ with cent children and their descendants can pleasure he saw the approach of that day, not inherit the estate even of their inno- when the posthumous rigours of forfei. cent grandsire. The inheritable blood of tures would cease; and the impediments the traitor being considered as extinct, no of descent no longer affect a blameless person whatsoever can claim any heredita- posterity.”. And in another passage the ments through him. Surely gentlemen same judicious author had said "we may must recoil from the contemplation of safely conclude that corruption of blood these posthumous severities. Little less with all its endless consequences, will terrible was the law of the Macedonians have a speedy and total abolition, as any and Persians, which doomed to death, farther intervention of parliament therein not only the traitor, but even his distant would be contrary to the sacred regard due kindred, nay his whole race. He could to national compacts." An hon. baronet not help recollecting, while he was upon (sir F. Burdeti) had declared that any this part of his subject, the famous golden attempt to perpetuate forfeiture and corbull of Germany, which enacts, that ruption of blood was contrary to the terms although the lives of the sons of those who of union with Scotland. It was thought conspire to kill an elector, are spared by desirable at the time of the union, that the mere bounty of the Emperor, yet the law of treason, should be 'rendered they should be deprived of eligibility to all uniform in both countries. The English offices of honour or emolument, should House of Commons maintained, that this be deprived of the rights of succession to uniformity would be best effected by the all property,“ to the end that being always abolition of forfeiture and corruption of poor and necessitous, they may for ever be blood throughout the united kingdoms : accompanied by the infamy of their father, and in that idea it was supported by the may languish in continual indigence, and Scotch nation, whose punishment of may find their punishment in living, and treason was, in some respects, milder than their relief in dying." The same inhuman in England. The House of Lords relanguage must now, he said, be used by sisted, and at length it was agreed, that, the advocates for corrupting the whole if Scotland would consent to make itself blood of the traitor. They would inter. liable to the English forfeitures and corrupt the course of descents, that his chil. ruption of blood for a time, namely, until dren, and all his claimants deriving title the death of the then Pretender to the through him from any remoter ancestor, throne, those severities should from that might never know the advantages of inhe period be annulled in every part of Great ritance, and thus find their punishment Britain. By a clause in the 17th of Geo. in living and their relief in dying." It was 2nd, c. 39, the effect of the statute of Anne

[ocr errors]

was suspended until the death of the sons his subjets. Another argument in support of the Pretender, one of whom only was of this bill was derived from the peculiar now living, an aged man the last of the circumstances of the times. A neighStuart line. This suspending clause was bouring country we were told, had fur. declared by Mr. Fazakerley,* an eminent nished an unhappy proof of the baneful lawyer of that day to be subversive of the tendency of Jacobinical principles-such conditions of the union.' If, then, a pro- principles, wherever they had been relongation of the existence of these post-ceived, had carried destruction in their humous rigours beyond the period assign- train. Were not secret societies formed, ed by the statute of Anne were a breach upon the French model, in this country, of faith, what must be thought of this for the wicked purpose of undermining our measure, which had for its object the per- constitution, ourreligion and our laws, and petuation of them? Well, therefore, might substituting, in the room of subordination the hon. baronet exclaim, "what a lesson and regular government, the horrors of do you here hold out to Ireland !" You anarchy and revolutionary tyranny? Was declare, that an incorporative union be- it not evident, by the report of the secret tween England and Ireland would be for com

ommittee, that treason was prevalent at the happiness of both countries. Ireland, this moment, even in England? Taking enchanted with her independence, refuses for granted all the statements in that reto listen to you even for a moment. You port, there was no treason among the persevere, and determine to record upon lower orders of men, who were not likely your journals the fair, liberal, and advan- to pay much regard to forfeitures and contageous proposals upon which you are fiscations. But if it were supposed that willing to ground your treaty. But what the traitorous societies, said to abound in is the language of this bill? Incorporative this country, had been joined by many union bas no fundamental laws for its basis, persons of rank or property, then the rigofrom the instant it has taken place, the rous penalties, now under consideration, sovereignty is in the united parliament, had been proved to be ineffectual; and which may enact whatever it deems for strange it was, in pleading for the contithe public good, without any regard to nuance of laws, to appeal to their ineffiprevious conditions, without adherence to cacy. It would be more conformable to engagements, or observance of compacts. good sense to apply for the repeal of such Must not this bill then excitein the Irish na- useless laws, and to contend, either for tion additional disgust against your favour. the introduction of others of a severe comite project of a union? In this light the bill plexion, better adapted to existing ciris no less impolitic than unjust and inhu- cumstances, or for the adoption of milder man. The hon. mover had observed, measures and a more lenient system. that if forfeiture and corruption of blood, The latter was the conclusion which he in cases of high treason were suffered to inferred from the report of the secret expire, there would be an inconsistency in committee. How different, then, were our laws, because those punishments were the impressions which that report had annexed to many kinds of felony; and made upon his mind, from those which it that thus the man, who should take away had excited in the breast of the bon. gen. the life of his sovereign, or excite rebel- tleman to whom the perusal of it bad sug; lion and civil war in the country, would be gested the propriety of bringing forward less punishable than him who was guilty this measure - Would you, Sir, prevent of an offence much inferior to the crimen the spread of treason and sedition? it is. lesæ majestatis. This certainly was true; to be accomplished not by coercive laws, but there was an obvious remedy-by one not by rigorous punishments; but by the general and undistinguishing statute sweep correction of abuses, by the redress of away forfeiture and corruption of blood, grievances, by the mildness of your gothe principle of which admits of no justifi- vernment. Thus you take away from the cation or excuse, and the inconsistency is ambitious and the desperate every engine cured. And with respect to the life of calculated to work upon the minds of the the sovereign, that is sufficiently protected lower orders. There is no truth of which by the statute 25th Edw. 3, c. 2, by which I am more strongly convinced than this an intention to destroy the king is made that no insurrection, on the part of a equivalent to the actual murder of one of people, for the purpose of effecting a

change in the form of government, can * See vol. 13, p. 884.

ever rise to a formidable height, if their

} 57

freedom be not violated, if oppression be instead of exciting indignation, became not suffered to exist. I wish I could flat. an object of pity. But if this was the ter myself that the House was likely to case with the offending party himself, concur in the sentiments I have expressed how much more strongly must the best for I should then indulge the pleasing passions be armed on his side, if the eye, prospect that, upon the decease of the turning from his execution, should see cardinal of York, men would be no longer the punishment entailed on his innocent liable to be tried, after their bones had posterity! The injustice of this law, the been deposited in the sepulchre of their appeal which its victims made to the ancestors, that the sacred silence of the feelings of mankind, was not transitory but grave would be no longer profanely dis-permanent: the unhappy descendants were turbed, and that innocent orphans and continual objects of pity and commisertheir posterity would be no longer devoted ration, and lived generation after generato infamy and ruin.

tion libels and satires on the justice of · Mr. Jones said, it had been observed, their government. A law thus operating that the Jacobins in this country amounted on the guiltless was founded in injustice, to 80,000. He did not believe there were and contrary to the fundamental principle near that number ; but he was very sure the of right and equity. His lordship then present measure would tend to create them. took a view of the arguments on which it It was hard to visit the sins of the father had been from time to time attempted to upon the children.

be supported. One of these was to be The question being put, that Mr. found in the late Mr. Yorke's pamphlet ; Speaker do now. leave the chair; the a book, the reputation of which was House divided :

more owing to the celebrity of the author Tellers.

than its intrinsic merit-a composition of Mr. Abbot

such erudition, but tedious without paralMr. Hawkins Browne

lel; heavily written, and miserable in .

point of reasoning. In it Mr. Yorke Noes Şir Francis Burdett


stated, that the objection grew out of the Mr. Hobhouse

nature of society, in which it would be So it was resolved in the affirmative. found impossible to punish the guilty

in any instance without affecting the Debate in the Lords on the Forfeiture innocent. This argument was founded in for. High TreasonBill.] July 4. On fallacy; it was taking up that as a printhe order of the day for the second read- ciple which was merely incidental; it was ing of this bill,

saying because, from the nature of Lord Holland rose to oppose it. He society, his innocent connexions must be stated the nature of the punishment, pro- involved in the fate of the guilty, we posed by the bill to be rendered perpetual should therefore act upon it as a principle, from Blackstone, where it is described and totally disregard them in apportioning not only as the deprivation of every the punishment because, says this notaspecies of property, but as destroying the ble argument, we cannot punish the guilty inheritable quality of the blood, by without affecting the innocent; we will forbidding any title to be derived, through therefore begin by punishing the innocent, the person convicted, to his posterity. in order to affect the guilty. Cicero was Having dwelt upon the great extent of another authority adduced by the advothis punishment, he argued on the ineffi- cates for forfeiture and corruption of cacy of it, resulting from its overstrained blood. That great orator had laid it severity. In two ways, severe laws de- down, that the state had a right to avail feated their own object-by increasing itself of the best feelings of men for its the difficulty of detection, and by dimi- security, and the prevention of crime. nishing the respect for the laws. 'Where In the passage, however, where this senpunishment exceeded the bounds of ne-timent was expressed, the author was cessity, all the good passions of mankind defending an 'imputed act of injuswere excited, not against the crime and tice, and therefore it had not all the the criminal, but against the punishment weight of a pure, ingenuous opinion. and the laws. Men of kind and generous But, even admitting that it had, it was natures were not disposed to see them in- liable to objection; as upon the same ficted; and even in cases where they ground he might justify torture, and were put, in execution, the criminal, every other act of tyranny and injustice

Yeas {


that arbitrary power had ever resorted to., which was preferable to all theory and If this principle were true, where could we visionary systems, the wisdom resulting stop? Why are we to condemn those from practice and experience, and the laws which, in Persia and other Eastern consequences to which the measure, so far countries, murdered, for the crime of as it was hitherto acted upon, had led. For treason, the children, the parents, the re- this he would not refer their lordships to lations, the friends of the offender ? His the history of England, but to what was lordship next adverted to the arguments passing in the sister kingdom. It was drawn from the nature of property and well known that the population of that inheritable succession, as the creature of country was divided into papists and prosociety, and a favour from government. testants, the latter of whom possessed the This, he said, was the very Jacobinical confiscated property that once belonged doctrine so much abused. Admitting, to the ancestors of the former. Now, however, property to be such a creature, and what was the alleged object of those the right of transmitting it to his posterity charged with treason and rebellion ? to be a favour from government to the Why, to dispossess the Protestants, and subject, it did not follow that they should recover that property of which the papists be withdrawn at pleasure. But here, too, were deprived by the laws of forfeiture, the principle of injustice recurred in an beneath which they had fallen. He increased degree ; for if the power of meant not here to examine whether these transmitting property were a favour, the charges were true--the Protestants afpower of inheriting it was surely a greater fected to suspect the Catholics of such favour; and therefore he that enjoyed the designs : whether they really entertained less favour by his actions, drew on the such monstrous intentions, or whether the innocent the loss of the more important Protestants wickedly imputed that intenfavour. To interrupt its descent, was to tion to them to furnish them with a prepunish the guilty a little, but the innocent text for oppressing, still in either case the to an enormous extent. Then we were told, laws of forfeiture were the fountain from he said, of a conspiracy in the country to which such designs or such oppression overthrow the government, and divide the had their source: to them the distracted property of the nation among the despe- state of Ireland was to be attributed. rate and necessitous ; it was described as Here, then, we had before our eyes the a system of treason, in which the poor growth of this law, its progress and were armed against the rich ; and there- its fruits; a law which engraved on the fore this law was to be introduced as a heart and mind of the subject his inju. remedy. Now, if this statement were jury and his

which entailed true, to perpetuate the law of forfeiture them from generation to generation ; and attainder was most needless; for how which rendered it impossible for him to the disability of transmitting his property, forget the injustice he had suffered; which should operate upon men who had none; armed one part of society against the he was at a loss to discover. Consi- other ; which made a man's neighbour his dering, then, the moderation of our despoiler, preventing him from becoming ancestors in that in which they were the a useful member of society, becauseat his least moderate; considering that even birth it deprived him of the means, as a they, to pụnish and restrain treason and zealous supporter of the state, which had rebellion in the case of men whose rank interdicted him from its benefits. Such and fortune brought them particularly were the consequences of the law as within the terrors of such a law, had only experienced in Ireland; a law which had made it temporary, he could not consent spread hatred and dissension through the to see it, on so much weaker grounds, land, and rendered jealousy and dislike rendered perpetual. He would leave, perpetual ; a law which, at the moment however, all abstract and speculative doc- dissentions were on the point of being trines, and proceed to what carried ten healed, stepped in between the parties, times more conviction to his mind than all and said, No; there shall be no reconcithe writings of Grotius, Puffendorf, and liation, no tranquillity, no amnesty; the Cicero, even supposing the opinions of feuds which have existed, shall exist for the former to be as clear and explicit as ever; the wounds which are inflicted shalt they were dark and intricate, or of the never be healed, and dissention shall be latter to be as positive and uniform as your portion; suspicion on one side, and vague and variable. He meant that vengeance on the other, shall be your nheritance. “Pungent ipsique, nepotes was apt to speak rather whimsically, the que.” Regarding, then, the doctrine of late lord Egmont, chose to argue the forfeiture as the great source of the trou- clause which he had mentioned, as a bles which distracted that kingdom, he clause intended to operate as a toleration must deprecate the idea of rendering it for treason. The learned lord stated why perpetual in this. The punishment of in the present bill, that clause was confiscation was the favourite and dread- omitted ; and took notice of the Consideful engine of arbitrary power, because, at rations on the Law of Treason, written the same time that it glutted its revenge by the late Mr. Yorke. He said, it was and cruelty, it gratified its avarice. a work to which it was usual to look up It had been the tyrant's resort in all times as the composition of a man well acand in all countries, even in our own. quainted with his subject. He did not allude to the present day; but The Earl of Radnor said, that the exas it had been formerly resorted to for pediency of the law of forfeiture was very the worst of purposes, such times might much doubted by many great lawyers come again. This objection had the in former times, and he thought its tenmore weight with him, as he saw ministers dency at any period to prevent treason embarked in schemes of enormous ex- extremely questionable. The treasons pense, how, then, could he be certain, but abroad in the present day, however, were this law, if rendered perpetual, might not not of a species which this bill would be hereafter be!used to furnish a supply for very likely to affect. Since they had the wants such expense must unavoidably been afloat, there was but a solitary increate? It had been used as an engine stance of the application of the law in the for such purposes once: what security case of a younger branch of a noble fahad we that it might not be so used mily in the sister kingdom. With respect again? The recent history of France to that case, indeed he much doubted furnished a case of such application. He whether forfeiture had been properly apmust also consider it as a breach of plied. He did not mean to give any opicontract with Scotland. It was an implied nion as to the guilt of the individual, but condition of the union, that this law he thought that the proceeding was very should be suffered to die away; and it doubtful

wrongs :

, because the party had no ophad been afterwards relaxed in favour portunity to defend himself, and there of individuals; but now this promised was a possibility, that he might have been indulgence was to be withdrawn, and it innocent, since he did not fall in battle was proposed, contrary to the merciful against the crown and government; a indulgence so long held out, to render it case that could leave no doubt as to guilt. perpetual

He begged leave also to remind their lordThe Lord Chancellor said it was a mis- ships of the maxim of the divine law, that a take in the noble lord to state the present son was not to suffer for the iniquity of the bill as a new law, and a law foreign to father. He was decidedly against the bill. the constitution. It bad made a part of Lord Grenville admitted, that if the the law of England from the earliest present description of treason was a contimes, and had suggested itself to the spiracy of the poor against the rich, forwisdom of our ancestors, as a law actu- feiture could have little effect on those ally necessary to be in force for the safety who had no property to forfeit. But of the state, from periods of the remotest while the great mass of traitors were, perantiquity. The bill which this bill went haps, of that description, there were men to repeal, was an act of the 7th of queen of rank and property in the back ground, Anne, in which some persons were ena- by whom they were instigated, and withbled to obtain the insertion of a clause, out whose influence their efforts would be tbe apparent object of which was some- of little avail. In support of this asserwhat extraordinary, as its tendency was tion, he referred to the late duke of Orto insinuate that treason, instead of being leans, who had taken só active a part in a crime of greater magnitude, was of less the French revolution; and also to the import and weight than other felonies. case of lord E. Fitzgerald. It was thereSome years back a debate occurred in fore necessary to take care, that every one of the Houses of Parliament upon obstacle should be thrown in the way of the subject, in which a near friend of the men of rank and fortune, who should be noble lord eminently distinguished him willing to delude the multitude into acts self; and on that occasion, a person who of treason and rebellion. [VOL. XXXIV.)

[4 A]

« ZurückWeiter »