No More Learning

The
number of seamen was fixed at ten thousand, a great force, according to
the notions of that age, for a time of peace. The funds assigned some
years before for the support of the civil list had fallen short of the
estimate. It was resolved that a new arrangement should be made, and
that a certain income should be settled on the King. The amount was
fixed, by an unanimous vote, at seven hundred thousand pounds; and the
Commons declared that, by making this ample provision for his comfort
and dignity, they meant to express their sense of the great things which
he had done for the country. It is probable, however, that so large a
sum would not have been given without debates and divisions, had it not
been understood that he meant to take on himself the charge of the Duke
of Gloucester's establishment, and that he would in all probability have
to pay fifty thousand pounds a year to Mary of Modena. The Tories
were unwilling to disoblige the Princess of Denmark; and the Jacobites
abstained from offering any opposition to a grant in the benefit of
which they hoped that the banished family would participate.

It was not merely by pecuniary liberality that the Parliament testified
attachment to the Sovereign. A bill was rapidly passed which withheld
the benefit of the Habeas Corpus Act, during twelve months more, from
Bernardi and some other conspirators who had been concerned in the
Assassination Plot, but whose guilt, though demonstrated to the
conviction of every reasonable man, could not be proved by two
witnesses. At the same time new securities were provided against a new
danger which threatened the government. The peace had put an end to the
apprehension that the throne of William might be subverted by foreign
arms, but had, at the same time, facilitated domestic treason. It was no
longer necessary for an agent from Saint Germains to cross the sea in
a fishing boat, under the constant dread of being intercepted by a
cruiser. It was no longer necessary for him to land on a desolate beach,
to lodge in a thatched hovel, to dress himself like a carter, or to
travel up to town on foot. He came openly by the Calais packet, walked
into the best inn at Dover, and ordered posthorses for London. Meanwhile
young Englishmen of quality and fortune were hastening in crowds to
Paris. They would naturally wish to see him who had once been their
king; and this curiosity, though in itself innocent, might have evil
consequences. Artful tempters would doubtless be on the watch for every
such traveller; and many such travellers might be well pleased to be
courteously accosted, in a foreign land, by Englishmen of honourable
name, distinguished appearance, and insinuating address. It was not to
be expected that a lad fresh from the university would be able to refute
all the sophisms and calumnies which might be breathed in his ear
by dexterous and experienced seducers. Nor would it be strange if he
should, in no long time, accept an invitation to a private audience
at Saint Germains, should be charmed by the graces of Mary of Modena,
should find something engaging in the childish innocence of the Prince
of Wales, should kiss the hand of James, and should return home an
ardent Jacobite. An Act was therefore passed forbidding English subjects
to hold any intercourse orally, or by writing, or by message, with the
exiled family. A day was fixed after which no English subject, who had,
during the late war, gone into France without the royal permission or
borne arms against his country was to be permitted to reside in this
kingdom, except under a special license from the King. Whoever infringed
these rules incurred the penalties of high treason.

The dismay was at first great among the malecontents. For English and
Irish Jacobites, who had served under the standards of Lewis or hung
about the Court of Saint Germains, had, since the peace, come over in
multitudes to England. It was computed that thousands were within the
scope of the new Act. But the severity of that Act was mitigated by a
beneficent administration. Some fierce and stubborn non-jurors who would
not debase themselves by asking for any indulgence, and some conspicuous
enemies of the government who had asked for indulgence in vain, were
under the necessity of taking refuge on the Continent. But the great
majority of those offenders who promised to live peaceably under
William's rule obtained his permission to remain in their native land.

In the case of one great offender there were some circumstances which
attracted general interest, and which might furnish a good subject to
a novelist or a dramatist. Near fourteen years before this time,
Sunderland, then Secretary of State to Charles the Second, had married
his daughter Lady Elizabeth Spencer to Donough Macarthy, Earl of
Clancarty, the lord of an immense domain in Munster. Both the bridegroom
and the bride were mere children, the bridegroom only fifteen, the bride
only eleven. After the ceremony they were separated; and many years
full of strange vicissitudes elapsed before they again met. The boy soon
visited his estates in Ireland. He had been bred a member of the Church
of England; but his opinions and his practice were loose. He found
himself among kinsmen who were zealous Roman Catholics. A Roman
Catholic king was on the throne. To turn Roman Catholic was the best
recommendation to favour both at Whitehall and at Dublin Castle.
Clancarty speedily changed his religion, and from a dissolute Protestant
became a dissolute Papist. After the Revolution he followed the fortunes
of James; sate in the Celtic Parliament which met at the King's Inns;
commanded a regiment in the Celtic army; was forced to surrender himself
to Marlborough at Cork; was sent to England, and was imprisoned in the
Tower. The Clancarty estates, which were supposed to yield a rent of not
much less than ten thousand a year, were confiscated. They were charged
with an annuity to the Earl's brother, and with another annuity to his
wife; but the greater part was bestowed by the King on Lord Woodstock,
the eldest son of Portland; During some time, the prisoner's life was
not safe. For the popular voice accused him of outrages for which the
utmost license of civil war would not furnish a plea. It is said that
he was threatened with an appeal of murder by the widow of a Protestant
clergyman who had been put to death during the troubles. After passing
three years in confinement, Clancarty made his escape to the Continent,
was graciously received at St. Germains, and was entrusted with the
command of a corps of Irish refugees. When the treaty of Ryswick had
put an end to the hope that the banished dynasty would be restored by
foreign arms, he flattered himself that he might be able to make his
peace with the English Government. But he was grievously disappointed.
The interest of his wife's family was undoubtedly more than sufficient
to obtain a pardon for him. But on that interest he could not reckon.
The selfish, base, covetous, father-in-law was not at all desirous
to have a highborn beggar and the posterity of a highborn beggar to
maintain. The ruling passion of the brother-in-law was a stern and
acrimonious party spirit. He could not bear to think that he was so
nearly connected with an enemy of the Revolution and of the Bill of
Rights, and would with pleasure have seen the odious tie severed even
by the hand of the executioner. There was one, however, from whom the
ruined, expatriated, proscribed young nobleman might hope to find a kind
reception. He stole across the Channel in disguise, presented himself at
Sunderland's door, and requested to see Lady Clancarty. He was charged,
he said, with a message to her from her mother, who was then lying on a
sick bed at Windsor. By this fiction he obtained admission, made himself
known to his wife, whose thoughts had probably been constantly fixed on
him during many years, and prevailed on her to give him the most tender
proofs of an affection sanctioned by the laws both of God and of man.
The secret was soon discovered and betrayed by a waiting woman. Spencer
learned that very night that his sister had admitted her husband to her
apartment. The fanatical young Whig, burning with animosity which he
mistook for virtue, and eager to emulate the Corinthian who assassinated
his brother, and the Roman who passed sentence of death on his son, flew
to Vernon's office, gave information that the Irish rebel, who had once
already escaped from custody, was in hiding hard by, and procured a
warrant and a guard of soldiers. Clancarty was found in the arms of his
wife, and dragged to the Tower. She followed him and implored permission
to partake his cell. These events produced a great stir throughout the
society of London. Sunderland professed everywhere that he heartily
approved of his son's conduct; but the public had made up its mind about
Sunderland's veracity, and paid very little attention to his professions
on this or on any other subject. In general, honourable men of both
parties, whatever might be their opinion of Clancarty, felt great
compassion for his mother who was dying of a broken heart, and his poor
young wife who was begging piteously to be admitted within the Traitor's
Gate. Devonshire and Bedford joined with Ormond to ask for mercy. The
aid of a still more powerful intercessor was called in. Lady Russell
was esteemed by the King as a valuable friend; she was venerated by
the nation generally as a saint, the widow of a martyr; and, when she
deigned to solicit favours, it was scarcely possible that she should
solicit in vain. She naturally felt a strong sympathy for the unhappy
couple, who were parted by the walls of that gloomy old fortress in
which she had herself exchanged the last sad endearments with one whose
image was never absent from her. She took Lady Clancarty with her to the
palace, obtained access to William, and put a petition into his hand.
Clancarty was pardoned on condition that he should leave the kingdom and
never return to it. A pension was granted to him, small when compared
with the magnificent inheritance which he had forfeited, but quite
sufficient to enable him to live like a gentleman on the Continent. He
retired, accompanied by his Elizabeth, to Altona.

All this time the ways and means for the year were under consideration.
The Parliament was able to grant some relief to the country. The land
tax was reduced from four shillings in the pound to three. But nine
expensive campaigns had left a heavy arrear behind them; and it was
plain that the public burdens must, even in the time of peace, be such
as, before the Revolution, would have been thought more than sufficient
to support a vigorous war. A country gentleman was in no very good
humour, when he compared the sums which were now exacted from him with
those which he had been in the habit of paying under the last two kings;
his discontent became stronger when he compared his own situation
with that of courtiers, and above all of Dutch courtiers, who had been
enriched by grants of Crown property; and both interest and envy made
him willing to listen to politicians who assured him that, if those
grants were resumed, he might be relieved from another shilling.

The arguments against such a resumption were not likely to be heard with
favour by a popular assembly composed of taxpayers, but to statesmen and
legislators will seem unanswerable.

There can be no doubt that the Sovereign was, by the old polity of the
realm, competent to give or let the domains of the Crown in such manner
as seemed good to him. No statute defined the length of the term which
he might grant, or the amount of the rent which he must reserve. He
might part with the fee simple of a forest extending over a hundred
square miles in consideration of a tribute of a brace of hawks to be
delivered annually to his falconer, or of a napkin of fine linen to be
laid on the royal table at the coronation banquet. In fact, there had
been hardly a reign since the Conquest, in which great estates had not
been bestowed by our princes on favoured subjects. Anciently, indeed,
what had been lavishly given was not seldom violently taken away.
Several laws for the resumption of Crown lands were passed by the
Parliaments of the fourteenth and fifteenth centuries. Of those laws the
last was that which, in the year 1485, immediately after the battle of
Bosworth, annulled the donations of the kings of the House of York. More
than two hundred years had since elapsed without any Resumption Act.
An estate derived from the royal liberality had long been universally
thought as secure as an estate which had descended from father to son
since the compilation of Domesday Book. No title was considered as more
perfect than that of the Russells to Woburn, given by Henry the Eighth
to the first Earl of Bedford, or than that of the Cecils to Hatfield,
purchased from the Crown for less than a third of the real value by
the first Earl of Salisbury. The Long Parliament did not, even in that
celebrated instrument of nineteen articles, which was framed expressly
for the purpose of making the King a mere Doge, propose to restrain him
from dealing according to his pleasure with his parks and his castles,
his fisheries and his mines. After the Restoration, under the government
of an easy prince, who had indeed little disposition to give, but who
could not bear to refuse, many noble private fortunes were carved out of
the property of the Crown. Some of the persons who were thus enriched,
Albemarle, for example, Sandwich and Clarendon, might be thought to have
fairly earned their master's favour by their services. Others had
merely amused his leisure or pandered to his vices. His mistresses were
munificently rewarded. Estates sufficient to support the highest rank in
the peerage were distributed among his illegitimate children. That these
grants, however prodigal, were strictly legal, was tacitly admitted by
the Estates of the Realm, when, in 1689, they recounted and condemned
the unconstitutional acts of the kings of the House of Stuart. Neither
in the Declaration of Right nor in the Bill of Rights is there a word on
the subject. William, therefore, thought himself at liberty to give
away his hereditary domains as freely as his predecessors had given away
theirs. There was much murmuring at the profusion with which he rewarded
his Dutch favourites; and we have seen that, on one occasion in the year
1696, the House of Commons interfered for the purpose of restraining
his liberality. An address was presented requesting him not to grant to
Portland an extensive territory in North Wales. But it is to be observed
that, though in this address a strong opinion was expressed that the
grant would be mischievous, the Commons did not deny, and must therefore
be considered as having admitted, that it would be perfectly legal. The
King, however, yielded; and Portland was forced to content himself with
ten or twelve manors scattered over various counties from Cumberland to
Sussex.

It seems, therefore, clear that our princes were, by the law of the
land, competent to do what they would with their hereditary estates.
It is perfectly true that the law was defective, and that the profusion
with which mansions, abbeys, chaces, warrens, beds of ore, whole
streets, whole market towns, had been bestowed on courtiers was greatly
to be lamented. Nothing could have been more proper than to pass a
prospective statute tying up in strict entail the little which still
remained of the Crown property. But to annul by a retrospective statute
patents, which in Westminster Hall were held to be legally valid, would
have been simply robbery. Such robbery must necessarily have made all
property insecure; and a statesman must be short-sighted indeed who
imagines that what makes property insecure can really make society
prosperous.

But it is vain to expect that men who are inflamed by anger, who are
suffering distress, and who fancy that it is in their power to obtain
immediate relief from their distresses at the expense of those who have
excited their anger, will reason as calmly as the historian who, biassed
neither by interest nor passion, reviews the events of a past age.
The public burdens were heavy. To whatever extent the grants of royal
domains were revoked, those burdens would be lightened. Some of the
recent grants had undoubtedly been profuse. Some of the living grantees
were unpopular. A cry was raised which soon became formidably loud. All
the Tories, all the malecontent Whigs, and multitudes who, without
being either Tories or malecontent Whigs, disliked taxes and disliked
Dutchmen, called for a resumption of all the Crown property which King
William had, as it was phrased, been deceived into giving away.

On the seventh of February 1698, this subject, destined to irritate
the public mind at intervals during many years, was brought under the
consideration of the House of Commons. The opposition asked leave to
bring in a bill vacating all grants of Crown property which had been
made since the Revolution. The ministers were in a great strait; the
public feeling was strong; a general election was approaching; it was
dangerous and it would probably be vain to encounter the prevailing
sentiment directly. But the shock which could not be resisted might be
eluded. The ministry accordingly professed to find no fault with the
proposed bill, except that it did not go far enough, and moved for leave
to bring in two more bills, one for annulling the grants of James the
Second, the other for annulling the grants of Charles the Second. The
Tories were caught in their own snare. For most of the grants of Charles
and James had been made to Tories; and a resumption of those grants
would have reduced some of the chiefs of the Tory party to poverty. Yet
it was impossible to draw a distinction between the grants of William
and those of his two predecessors. Nobody could pretend that the law
had been altered since his accession. If, therefore, the grants of the
Stuarts were legal, so were his; if his grants were illegal, so were
the grants of his uncles. And, if both his grants and the grants of his
uncles were illegal, it was absurd to say that the mere lapse of time
made a difference. For not only was it part of the alphabet of the law
that there was no prescription against the Crown, but the thirty-eight
years which had elapsed since the Restoration would not have sufficed
to bar a writ of right brought by a private demandant against a wrongful
tenant. Nor could it be pretended that William had bestowed his favours
less judiciously than Charles and James. Those who were least friendly
to the Dutch would hardly venture to say that Portland, Zulestein and
Ginkell was less deserving of the royal bounty than the Duchess of
Cleveland and the Duchess of Portsmouth, than the progeny of Nell Gwynn,
than the apostate Arlington or the butcher Jeffreys. The opposition,
therefore, sullenly assented to what the ministry proposed. From that
moment the scheme was doomed. Everybody affected to be for it; and
everybody was really against it. The three bills were brought in
together, read a second time together, ordered to be committed together,
and were then, first mutilated, and at length quietly dropped.

In the history of the financial legislation of this session, there were
some episodes which deserve to be related. Those members, a numerous
body, who envied and dreaded Montague readily became the unconscious
tools of the cunning malice of Sunderland, whom Montague had refused
to defend in Parliament, and who, though detested by the opposition,
contrived to exercise some influence over that party through the
instrumentality of Charles Duncombe. Duncombe indeed had his own reasons
for hating Montague, who had turned him out of the place of Cashier of
the Excise. A serious charge was brought against the Board of Treasury,
and especially against its chief. He was the inventor of Exchequer
Bills; and they were popularly called Montague's notes. He had induced
the Parliament to enact that those bills, even when at a discount in the
market, should be received at par by the collectors of the revenue.
This enactment, if honestly carried into effect, would have been
unobjectionable. But it was strongly rumoured that there had been
foul play, peculation, even forgery. Duncombe threw the most serious
imputations on the Board of Treasury, and pretended that he had been put
out of his office only because he was too shrewd to be deceived, and too
honest to join in deceiving the public. Tories and malecontent Whigs,
elated by the hope that Montague might be convicted of malversation,
eagerly called for inquiry. An inquiry was instituted; but the
result not only disappointed but utterly confounded the accusers. The
persecuted minister obtained both a complete acquittal, and a signal
revenge. Circumstances were discovered which seemed to indicate that
Duncombe himself was not blameless. The clue was followed; he was
severely cross-examined; he lost his head; made one unguarded admission
after another, and was at length compelled to confess, on the floor of
the House, that he had been guilty of an infamous fraud, which, but for
his own confession, it would have been scarcely possible to bring home
to him. He had been ordered by the Commissioners of the Excise to pay
ten thousand pounds into the Exchequer for the public service. He had in
his hands, as cashier, more than double that sum in good milled silver.
With some of this money he bought Exchequer Bills which were then at
a considerable discount; he paid those bills in; and he pocketed the
discount, which amounted to about four hundred pounds. Nor was this
all. In order to make it appear that the depreciated paper, which he had
fraudulently substituted for silver, had been received by him in payment
of taxes, he had employed a knavish Jew to forge endorsements of names,
some real and some imaginary. This scandalous story, wrung out of his
own lips, was heard by the opposition with consternation and shame,
by the ministers and their friends with vindictive exultation. It was
resolved, without any division, that he should be sent to the Tower,
that he should be kept close prisoner there, that he should be expelled
from the House. Whether any further punishment could be inflicted on him
was a perplexing question. The English law touching forgery became, at a
later period, barbarously severe; but, in 1698, it was absurdly lax. The
prisoner's offence was certainly not a felony; and lawyers apprehended
that there would be much difficulty in convicting him even of a
misdemeanour. But a recent precedent was fresh in the minds of all men.
The weapon which had reached Fenwick might reach Duncombe. A bill of
pains and penalties was brought in, and carried through the earlier
stages with less opposition than might have been expected. Some Noes
might perhaps be uttered; but no members ventured to say that the Noes
had it. The Tories were mad with shame and mortification, at finding
that their rash attempt to ruin an enemy had produced no effect except
the ruin of a friend. In their rage, they eagerly caught at a new hope
of revenge, a hope destined to end, as their former hope had ended, in
discomfiture and disgrace. They learned, from the agents of Sunderland,
as many people suspected, but certainly from informants who were well
acquainted with the offices about Whitehall, that some securities
forfeited to the Crown in Ireland had been bestowed by the King
ostensibly on one Thomas Railton, but really on the Chancellor of the
Exchequer. The value of these securities was about ten thousand pounds.
On the sixteenth of February this transaction was brought without
any notice under the consideration of the House of Commons by Colonel
Granville, a Tory member, nearly related to the Earl of Bath. Montague
was taken completely by surprise, but manfully avowed the whole truth,
and defended what he had done. The orators of the opposition declaimed
against him with great animation and asperity. "This gentleman,"
they said, "has at once violated three distinct duties. He is a privy
councillor, and, as such, is bound to advise the Crown with a view, not
to his own selfish interests, but to the general good. He is the first
minister of finance, and is, as such, bound to be a thrifty manager of
the royal treasure. He is a member of this House, and is, as such, bound
to see that the burdens borne by his constituents are not made heavier
by rapacity and prodigality. To all these trusts he has been unfaithful.
The advice of the privy councillor to his master is, 'Give me money. '
The first Lord of the Treasury signs a warrant for giving himself money
out of the Treasury. The member for Westminster puts into his pocket
money which his constituents must be taxed to replace. " The surprise
was complete; the onset was formidable; but the Whig majority, after
a moment of dismay and wavering, rallied firmly round their leader.
Several speakers declared that they highly approved of the prudent
liberality with which His Majesty had requited the services of a most
able, diligent and trusty counsellor. It was miserable economy indeed to
grudge a reward of a few thousands to one who had made the State richer
by millions. Would that all the largesses of former kings had been as
well bestowed! How those largesses had been bestowed none knew better
than some of the austere patriots who harangued so loudly against the
avidity of Montague. If there is, it was said, a House in England
which has been gorged with undeserved riches by the prodigality of weak
sovereigns, it is the House of Bath. Does it lie in the mouth of a son
of that house to blame the judicious munificence of a wise and good
King? Before the Granvilles complain that distinguished merit has been
rewarded with ten thousand pounds, let them refund some part of the
hundreds of thousands which they have pocketed without any merit at all.

The rule was, and still is, that a member against whom a charge is made
must be heard in his own defence, and must then leave the House. The
Opposition insisted that Montague should retire. His friends maintained
that this case did not fall within the rule. Distinctions were drawn;
precedents were cited; and at length the question was put, that Mr.
Montague do withdraw. The Ayes were only ninety-seven; the Noes two
hundred and nine. This decisive result astonished both parties. The
Tories lost heart and hope. The joy of the Whigs was boundless. It
was instantly moved that the Honourable Charles Montague, Esquire,
Chancellor of the Exchequer, for his good services to this Government
does deserve His Majesty's favour. The Opposition, completely cowed, did
not venture to demand another division. Montague scornfully thanked
them for the inestimable service which they had done him. But for
their malice he never should have had the honour and happiness of
being solemnly pronounced by the Commons of England a benefactor of his
country. As to the grant which had been the subject of debate, he was
perfectly ready to give it up, if his accusers would engage to follow
his example.

Even after this defeat the Tories returned to the charge. They pretended
that the frauds which had been committed with respect to the Exchequer
Bills had been facilitated by the mismanagement of the Board of
Treasury, and moved a resolution which implied a censure on that Board,
and especially on its chief. This resolution was rejected by a hundred
and seventy votes to eighty-eight. It was remarked that Spencer, as if
anxious to show that he had taken no part in the machinations of which
his father was justly or unjustly suspected, spoke in this debate with
great warmth against Duncombe and for Montague.

A few days later, the bill of pains and penalties against Duncombe
passed the Commons.
It provided that two thirds of his enormous
property, real and personal, should be confiscated and applied to the
public service. Till the third reading there was no serious opposition.
Then the Tories mustered their strength. They were defeated by a hundred
and thirty-eight votes to a hundred and three; and the bill was carried
up to the Lords by the Marquess of Hartington, a young nobleman whom the
great body of Whigs respected as one of their hereditary chiefs, as the
heir of Devonshire, and as the son in law of Russell.

That Duncombe had been guilty of shameful dishonesty was acknowledged
by all men of sense and honour in the party to which he belonged. He had
therefore little right to expect indulgence from the party which he had
unfairly and malignantly assailed. Yet it is not creditable to the Whigs
that they should have been so much disgusted by his frauds, or so much
irritated by his attacks, as to have been bent on punishing him in a
manner inconsistent with all the principles which governments ought to
hold most sacred.

Those who concurred in the proceeding against Duncombe tried to
vindicate their conduct by citing as an example the proceeding
against Fenwick. So dangerous is it to violate, on any pretence, those
principles which the experience of ages has proved to be the safeguards
of all that is most precious to a community. Twelve months had hardly
elapsed since the legislature had, in very peculiar circumstances, and
for very plausible reasons, taken upon itself to try and to punish a
great criminal whom it was impossible to reach in the ordinary course
of justice; and already the breach then made in the fences which protect
the dearest rights of Englishmen was widening fast. What had last year
been defended only as a rare exception seemed now to be regarded as the
ordinary rule. Nay, the bill of pains and penalties which now had
an easy passage through the House of Commons was infinitely more
objectionable than the bill which had been so obstinately resisted at
every stage in the preceding session.

The writ of attainder against Fenwick was not, as the vulgar imagined
and still imagine, objectionable because it was retrospective. It
is always to be remembered that retrospective legislation is bad in
principle only when it affects the substantive law. Statutes creating
new crimes or increasing the punishment of old crimes ought in no case
to be retrospective. But statutes which merely alter the procedure, if
they are in themselves good statutes, ought to be retrospective. To take
examples from the legislation of our own time, the Act passed in 1845,
for punishing the malicious destruction of works of art with whipping,
was most properly made prospective only. Whatever indignation the
authors of that Act might feel against the ruffian who had broken the
Barberini Vase, they knew that they could not, without the most serious
detriment to the commonwealth, pass a law for scourging him. On the
other hand the Act which allowed the affirmation of a Quaker to be
received in criminal cases allowed, and most justly and reasonably, such
affirmation to be received in the case of a past as well as of a future
misdemeanour or felony. If we try the Act which attainted Fenwick by
these rules we shall find that almost all the numerous writers who
have condemned it have condemned it on wrong grounds. It made no
retrospective change in the substantive law. The crime was not new.
It was high treason as defined by the Statute of Edward the Third. The
punishment was not new. It was the punishment which had been inflicted
on traitors of ten generations. All that was new was the procedure;
and, if the new procedure had been intrinsically better than the old
procedure, the new procedure might with perfect propriety have been
employed. But the procedure employed in Fenwick's case was the worst
possible, and would have been the worst possible if it had been
established from time immemorial. However clearly political crime may
have been defined by ancient laws, a man accused of it ought not to be
tried by a crowd of five hundred and thirteen eager politicians, of whom
he can challenge none even with cause, who have no judge to guide them,
who are allowed to come in and go out as they choose, who hear as much
or as little as they choose of the accusation and of the defence, who
are exposed, during the investigation, to every kind of corrupting
influence, who are inflamed by all the passions which animated debates
naturally excite, who cheer one orator and cough down another, who are
roused from sleep to cry Aye or No, or who are hurried half drunk
from their suppers to divide. For this reason, and for no other, the
attainder of Fenwick is to be condemned. It was unjust and of evil
example, not because it was a retrospective Act, but because it was an
act essentially judicial, performed by a body destitute of all judicial
qualities.

The bill for punishing Duncombe was open to all the objections which can
be urged against the bill for punishing Fenwick, and to other objections
of even greater weight. In both cases the judicial functions were
usurped by a body unfit to exercise such functions. But the bill
against Duncombe really was, what the bill against Fenwick was not,
objectionable as a retrospective bill. It altered the substantive
criminal law. It visited an offence with a penalty of which the
offender, at the time when he offended, had no notice.

It may be thought a strange proposition that the bill against Duncombe
was a worse bill than the bill against Fenwick, because the bill against
Fenwick struck at life, and the bill against Duncombe struck only at
property. Yet this apparent paradox is a sober truth. Life is indeed
more precious than property. But the power of arbitrarily taking away
the lives of men is infinitely less likely to be abused than the power
of arbitrarily taking away their property. Even the lawless classes of
society generally shrink from blood. They commit thousands of offences
against property to one murder; and most of the few murders which they
do commit are committed for the purpose of facilitating or concealing
some offence against property. The unwillingness of juries to find a
fellow creature guilty of a capital felony even on the clearest evidence
is notorious; and it may well be suspected that they frequently violate
their oaths in favour of life. In civil suits, on the other hand, they
too often forget that their duty is merely to give the plaintiff a
compensation for evil suffered; and, if the conduct of the defendant has
moved their indignation and his fortune is known to be large, they turn
themselves into a criminal tribunal, and, under the name of damages,
impose a large fine. As housebreakers are more likely to take plate and
jewellery than to cut throats; as juries are far more likely to err on
the side of pecuniary severity in assessing damages than to send to the
gibbet any man who has not richly deserved it; so a legislature,
which should be so unwise as to take on itself the functions properly
belonging to the Courts of Law, would be far more likely to pass Acts of
Confiscation than Acts of Attainder. We naturally feel pity even for a
bad man whose head is about to fall. But, when a bad man is compelled to
disgorge his ill-gotten gains, we naturally feel a vindictive pleasure,
in which there is much danger that we may be tempted to indulge too
largely.

The hearts of many stout Whigs doubtless bled at the thought of what
Fenwick must have suffered, the agonizing struggle, in a mind not of
the firmest temper, between the fear of shame and the fear of death,
the parting from a tender wife, and all the gloomy solemnity of the
last morning. But whose heart was to bleed at the thought that
Charles Duncombe, who was born to carry parcels and to sweep down a
counting-house, was to be punished for his knavery by having his income
reduced to eight thousand a year, more than most earls then possessed?

His judges were not likely to feel compassion for him; and they all had
strong selfish reasons to vote against him. They were all in fact bribed
by the very bill by which he would be punished.

His property was supposed to amount to considerably more than four
hundred thousand pounds. Two thirds of that property were equivalent to
about sevenpence in the pound on the rental of the kingdom as assessed
to the land tax. If, therefore, two thirds of that property could have
been brought into the Exchequer, the land tax for 1699, a burden most
painfully felt by the class which had the chief power in England, might
have been reduced from three shillings to two and fivepence. Every
squire of a thousand a year in the House of Commons would have had
thirty pounds more to spend; and that sum might well have made to him
the whole difference between being at ease and being pinched during
twelve months. If the bill had passed, if the gentry and yeomanry of
the kingdom had found that it was possible for them to obtain a welcome
remission of taxation by imposing on a Shylock or an Overreach, by a
retrospective law, a fine not heavier than his misconduct might, in a
moral view, seem to have deserved, it is impossible to believe that they
would not soon have recurred to so simple and agreeable a resource. In
every age it is easy to find rich men who have done bad things for which
the law has provided no punishment or an inadequate punishment. The
estates of such men would soon have been considered as a fund applicable
to the public service. As often as it was necessary to vote an
extraordinary supply to the Crown, the Committee of Ways and Means would
have looked about for some unpopular capitalist to plunder. Appetite
would have grown with indulgence. Accusations would have been eagerly
welcomed. Rumours and suspicions would have been received as proofs. The
wealth of the great goldsmiths of the Royal Exchange would have become
as insecure as that of a Jew under the Plantagenets, as that of a
Christian under a Turkish Pasha. Rich men would have tried to invest
their acquisitions in some form in which they could lie closely hidden
and could be speedily removed. In no long time it would have been found
that of all financial resources the least productive is robbery, and
that the public had really paid far more dearly for Duncombe's hundreds
of thousands than if it had borrowed them at fifty per cent.

These considerations had more weight with the Lords than with the
Commons. Indeed one of the principal uses of the Upper House is to
defend the vested rights of property in cases in which those rights are
unpopular, and are attacked on grounds which to shortsighted politicians
seem valid. An assembly composed of men almost all of whom have
inherited opulence, and who are not under the necessity of paying court
to constituent bodies, will not easily be hurried by passion or seduced
by sophistry into robbery. As soon as the bill for punishing Duncombe
had been read at the table of the Peers, it became clear that there
would be a sharp contest. Three great Tory noblemen, Rochester,
Nottingham and Leeds, headed the opposition; and they were joined by
some who did not ordinarily act with them. At an early stage of the
proceedings a new and perplexing question was raised. How did it appear
that the facts set forth in the preamble were true, that Duncombe had
committed the frauds for which it was proposed to punish him in so
extraordinary a manner? In the House of Commons, he had been taken
by surprise; he had made admissions of which he had not foreseen the
consequences; and he had then been so much disconcerted by the severe
manner in which he had been interrogated that he had at length avowed
everything. But he had now had time to prepare himself; he had been
furnished with advice by counsel; and, when he was placed at the bar of
the Peers, he refused to criminate himself and defied his persecutors
to prove him guilty. He was sent back to the Tower. The Lords acquainted
the Commons with the difficulty which had arisen. A conference was
held in the Painted Chamber; and there Hartington, who appeared for the
Commons, declared that he was authorized, by those who had sent him, to
assure the Lords that Duncombe had, in his place in Parliament, owned
the misdeeds which he now challenged his accusers to bring home to him.
The Lords, however, rightly thought that it would be a strange and a
dangerous thing to receive a declaration of the House of Commons in its
collective character as conclusive evidence of the fact that a man
had committed a crime. The House of Commons was under none of those
restraints which were thought necessary in ordinary cases to protect
innocent defendants against false witnesses. The House of Commons
could not be sworn, could not be cross-examined, could not be indicted,
imprisoned, pilloried, mutilated, for perjury. Indeed the testimony of
the House of Commons in its collective character was of less value than
the uncontradicted testimony of a single member. For it was only
the testimony of the majority of the House. There might be a large
respectable minority whose recollections might materially differ from
the recollections of the majority. This indeed was actually the case.
For there had been a dispute among those who had heard Duncombe's
confession as to the precise extent of what he had confessed; and
there had been a division; and the statement which the Upper House was
expected to receive as decisive on the point of fact had been at last
carried only by ninety votes to sixty-eight. It should seem therefore
that, whatever moral conviction the Lords might feel of Duncombe's
guilt, they were bound, as righteous judges, to absolve him.

After much animated debate, they divided; and the bill was lost by
forty-eight votes to forty-seven. It was proposed by some of the
minority that proxies should be called; but this scandalous proposition
was strenuously resisted; and the House, to its great honour, resolved
that on questions which were substantially judicial, though they might
be in form legislative, no peer who was absent should be allowed to have
a voice.

Many of the Whig Lords protested. Among them were Orford and Wharton.
It is to be lamented that Burnet, and the excellent Hough, who was now
Bishop of Oxford, should have been impelled by party spirit to record
their dissent from a decision which all sensible and candid men will now
pronounce to have been just and salutary. Somers was present; but his
name is not attached to the protest which was subscribed by his brethren
of the junto. We may therefore not unreasonably infer that, on this as
on many other occasions, that wise and virtuous statesman disapproved of
the violence of his friends.

In rejecting the bill, the Lords had only exercised their indisputable
right. But they immediately proceeded to take a step of which the
legality was not equally clear. Rochester moved that Duncombe should be
set at liberty. The motion was carried; a warrant for the discharge of
the prisoner was sent to the Tower, and was obeyed without hesitation
by Lord Lucas, who was Lieutenant of that fortress. As soon as this was
known, the anger of the Commons broke forth with violence. It was by
their order that the upstart Duncombe had been put in ward. He was their
prisoner; and it was monstrous insolence in the Peers to release him.
The Peers defended what they had done by arguments which must be allowed
to have been ingenious, if not satisfactory. It was quite true that
Duncombe had originally been committed to the Tower by the Commons. But,
it was said, the Commons, by sending a penal bill against him to the
Lords, did, by necessary implication, send him also to the Lords. For
it was plainly impossible for the Lords to pass the bill without hearing
what he had to say against it. The Commons had felt this, and had not
complained when he had, without their consent, been brought from his
place of confinement, and set at the bar of the Peers. From that moment
he was the prisoner of the Peers. He had been taken back from the bar
to the Tower, not by virtue of the Speaker's warrant, of which the force
was spent, but by virtue of their order which had remanded him. They,
therefore, might with perfect propriety discharge him.

Whatever a jurist might have thought of these arguments, they had no
effect on the Commons. Indeed, violent as the spirit of party was in
those times, it was less violent than the spirit of caste. Whenever a
dispute arose between the two Houses, many members of both forgot that
they were Whigs or Tories, and remembered only that they were Patricians
or Plebeians. On this occasion nobody was louder in asserting the
privileges of the representatives of the people in opposition to the
encroachments of the nobility than Harley. Duncombe was again arrested
by the Serjeant at Arms, and remained in confinement till the end of the
session. Some eager men were for addressing the King to turn Lucas out
of office. This was not done; but during several days the ill humour
of the Lower House showed itself by a studied discourtesy. One of
the members was wanted as a witness in a matter which the Lords were
investigating. They sent two judges with a message requesting the
permission of the Commons to examine him. At any other time the judges
would have been called in immediately, and the permission would have
been granted as of course. But on this occasion the judges were kept
waiting some hours at the door; and such difficulties were made about
the permission that the Peers desisted from urging a request which
seemed likely to be ungraciously refused.

The attention of the Parliament was, during the remainder of the
session, chiefly occupied by commercial questions. Some of those
questions required so much investigation, and gave occasion to so much
dispute, that the prorogation did not take place till the fifth of July.
There was consequently some illness and much discontent among both Lords
and Commons. For, in that age, the London season usually ended soon
after the first notes of the cuckoo had been heard, and before the poles
had been decked for the dances and mummeries which welcomed the genial
May day of the ancient calendar. Since the year of the Revolution, a
year which was an exception to all ordinary rules, the members of the
two Houses had never been detained from their woods and haycocks even so
late as the beginning of June.

The Commons had, soon after they met, appointed a Committee to enquire
into the state of trade, and had referred to this Committee several
petitions from merchants and manufacturers who complained that they were
in danger of being undersold, and who asked for additional protection.

A highly curious report on the importation of silks and the exportation
of wool was soon presented to the House. It was in that age believed by
all but a very few speculative men that the sound commercial policy was
to keep out of the country the delicate and brilliantly tinted textures
of southern looms, and to keep in the country the raw material on which
most of our own looms were employed. It was now fully proved that,
during eight years of war, the textures which it was thought desirable
to keep out had been constantly coming in, and the material which it
was thought desirable to keep in had been constantly going out. This
interchange, an interchange, as it was imagined, pernicious to England,
had been chiefly managed by an association of Huguenot refugees,
residing in London. Whole fleets of boats with illicit cargoes had
been passing and repassing between Kent and Picardy. The loading and
unloading had taken place sometimes in Romney Marsh, sometimes on the
beach under the cliffs between Dover and Folkstone. All the inhabitants
of the south eastern coast were in the plot. It was a common saying
among them that, if a gallows were set up every quarter of a mile along
the coast, the trade would still go on briskly. It had been discovered,
some years before, that the vessels and the hiding places which were
necessary to the business of the smuggler had frequently afforded
accommodation to the traitor. The report contained fresh evidence upon
this point. It was proved that one of the contrabandists had provided
the vessel in which the ruffian O'Brien had carried Scum Goodman over to
France.

The inference which ought to have been drawn from these facts was that
the prohibitory system was absurd. That system had not destroyed the
trade which was so much dreaded, but had merely called into existence a
desperate race of men who, accustomed to earn their daily bread by the
breach of an unreasonable law, soon came to regard the most reasonable
laws with contempt, and, having begun by eluding the custom house
officers, ended by conspiring against the throne. And, if, in time of
war, when the whole Channel was dotted with our cruisers, it had been
found impossible to prevent the regular exchange of the fleeces of
Cotswold for the alamodes of Lyons, what chance was there that any
machinery which could be employed in time of peace would be more
efficacious? The politicians of the seventeenth century, however, were
of opinion that sharp laws sharply administered could not fail to save
Englishmen from the intolerable grievance of selling dear what could
be best produced by themselves, and of buying cheap what could be best
produced by others. The penalty for importing French silks was made
more severe. An Act was passed which gave to a joint stock company an
absolute monopoly of lustrings for a term of fourteen years. The fruit
of these wise counsels was such as might have been foreseen. French
silks were still imported; and, long before the term of fourteen years
had expired, the funds of the Lustring Company had been spent, its
offices had been shut up, and its very name had been forgotten at
Jonathan's and Garraway's.

Not content with prospective legislation, the Commons unanimously
determined to treat the offences which the Committee had brought to
light as high crimes against the State, and to employ against a few
cunning mercers in Nicholas Lane and the Old Jewry all the gorgeous and
cumbrous machinery which ought to be reserved for the delinquencies of
great Ministers and Judges. It was resolved, without a division, that
several Frenchmen and one Englishman who had been deeply concerned
in the contraband trade should be impeached. Managers were appointed;
articles were drawn up; preparations were made for fitting up
Westminster Hall with benches and scarlet hangings; and at one time
it was thought that the trials would last till the partridge shooting
began. But the defendants, having little hope of acquittal, and not
wishing that the Peers should come to the business of fixing the
punishment in the temper which was likely to be the effect of an
August passed in London, very wisely declined to give their lordships
unnecessary trouble, and pleaded guilty. The sentences were consequently
lenient. The French offenders were merely fined; and their fines
probably did not amount to a fifth part of the sums which they had
realised by unlawful traffic. The Englishman who had been active in
managing the escape of Goodman was both fined and imprisoned.

The progress of the woollen manufactures of Ireland excited even more
alarm and indignation than the contraband trade with France. The
French question indeed had been simply commercial. The Irish question,
originally commercial, became political. It was not merely the
prosperity of the clothiers of Wiltshire and of the West Riding that was
at stake; but the dignity of the Crown, the authority of the Parliament,
and the unity of the empire. Already might be discerned among the
Englishry, who were now, by the help and under the protection of the
mother country, the lords of the conquered island, some signs of a
spirit, feeble indeed, as yet, and such as might easily be put down by a
few resolute words, but destined to revive at long intervals, and to be
stronger and more formidable at every revival.

The person who on this occasion came forward as the champion of the
colonists, the forerunner of Swift and of Grattan, was William Molyneux.
He would have rejected the name of Irishman as indignantly as a citizen
of Marseilles or Cyrene, proud of his pure Greek blood, and fully
qualified to send a chariot to the Olympic race course, would have
rejected the name of Gaul or Libyan. He was, in the phrase of that
time, an English gentleman of family and fortune born in Ireland. He had
studied at the Temple, had travelled on the Continent, had become
well known to the most eminent scholars and philosophers of Oxford and
Cambridge, had been elected a member of the Royal Society of London, and
had been one of the founders of the Royal Society of Dublin. In the days
of Popish ascendancy he had taken refuge among his friends here; he
had returned to his home when the ascendancy of his own caste had been
reestablished; and he had been chosen to represent the University of
Dublin in the House of Commons. He had made great efforts to promote the
manufactures of the kingdom in which he resided; and he had found those
efforts impeded by an Act of the English Parliament which laid severe
restrictions on the exportation of woollen goods from Ireland. In
principle this Act was altogether indefensible. Practically it was
altogether unimportant. Prohibitions were not needed to prevent the
Ireland of the seventeenth century from being a great manufacturing
country; nor could the most liberal bounties have made her so. The
jealousy of commerce, however, is as fanciful and unreasonable as the
jealousy of love. The clothiers of Wilts and Yorkshire were weak enough
to imagine that they should be ruined by the competition of a half
barbarous island, an island where there was far less capital than in
England, where there was far less security for life and property than
in England, and where there was far less industry and energy among the
labouring classes than in England. Molyneux, on the other hand, had
the sanguine temperament of a projector. He imagined that, but for
the tyrannical interference of strangers, a Ghent would spring up
in Connemara, and a Bruges in the Bog of Allen. And what right had
strangers to interfere? Not content with showing that the law of which
he complained was absurd and unjust, he undertook to prove that it was
null and void. Early in the year 1698 he published and dedicated to the
King a treatise in which it was asserted in plain terms that the English
Parliament had no authority over Ireland.

Whoever considers without passion or prejudice the great constitutional
question which was thus for the first time raised will probably be
of opinion that Molyneux was in error. The right of the Parliament of
England to legislate for Ireland rested on the broad general principle
that the paramount authority of the mother country extends over all
colonies planted by her sons in all parts of the world. This principle
was the subject of much discussion at the time of the American troubles,
and was then maintained, without any reservation, not only by the
English Ministers, but by Burke and all the adherents of Rockingham,
and was admitted, with one single reservation, even by the Americans
themselves. Down to the moment of separation the Congress fully
acknowledged the competency of the King, Lords and Commons to make laws,
of any kind but one, for Massachusetts and Virginia. The only power
which such men as Washington and Franklin denied to the Imperial
legislature was the power of taxing. Within living memory, Acts which
have made great political and social revolutions in our Colonies have
been passed in this country; nor has the validity of those Acts ever
been questioned; and conspicuous among them were the law of 1807 which
abolished the slave trade, and the law of 1833 which abolished slavery.

The doctrine that the parent state has supreme power over the colonies
is not only borne out by authority and by precedent, but will appear,
when examined, to be in entire accordance with justice and with policy.
During the feeble infancy of colonies independence would be pernicious,
or rather fatal, to them. Undoubtedly, as they grow stronger and
stronger, it will be wise in the home government to be more and more
indulgent. No sensible parent deals with a son of twenty in the same way
as with a son of ten. Nor will any government not infatuated treat such
a province as Canada or Victoria in the way in which it might be proper
to treat a little band of emigrants who have just begun to build their
huts on a barbarous shore, and to whom the protection of the flag of
a great nation is indispensably necessary. Nevertheless, there cannot
really be more than one supreme power in a society. If, therefore, a
time comes at which the mother country finds it expedient altogether to
abdicate her paramount authority over a colony, one of two courses
ought to be taken. There ought to be complete incorporation, if
such incorporation be possible. If not, there ought to be complete
separation. Very few propositions in polities can be so perfectly
demonstrated as this, that parliamentary government cannot be carried on
by two really equal and independent parliaments in one empire.

And, if we admit the general rule to be that the English parliament is
competent to legislate for colonies planted by English subjects, what
reason was there for considering the case of the colony in Ireland as an
exception? For it is to be observed that the whole question was between
the mother country and the colony. The aboriginal inhabitants, more than
five sixths of the population, had no more interest in the matter than
the swine or the poultry; or, if they had an interest, it was for
their interest that the caste which domineered over them should not be
emancipated from all external control. They were no more represented in
the parliament which sate at Dublin than in the parliament which sate at
Westminster. They had less to dread from legislation at Westminster than
from legislation at Dublin. They were, indeed, likely to obtain but a
very scanty measure of justice from the English Tories, a more scanty
measure still from the English Whigs; but the most acrimonious English
Whig did not feel towards them that intense antipathy, compounded of
hatred, fear and scorn, with which they were regarded by the Cromwellian
who dwelt among them. [8] For the Irishry Molyneux, though boasting that
he was the champion of liberty, though professing to have learned his
political principles from Locke's writings, and though confidently
expecting Locke's applause, asked nothing but a more cruel and more
hopeless slavery. What he claimed was that, as respected the colony to
which he belonged, England should forego rights which she has exercised
and is still exercising over every other colony that she has ever
planted. And what reason could be given for making such a distinction?
No colony had owed so much to England. No colony stood in such need of
the support of England. Twice, within the memory of men then living, the
natives had attempted to throw off the alien yoke; twice the intruders
had been in imminent danger of extirpation; twice England had come to
the rescue, and had put down the Celtic population under the feet of
her own progeny. Millions of English money had been expended in the
struggle. English blood had flowed at the Boyne and at Athlone, at
Aghrim and at Limerick.