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 offinance, 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 indictive 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. The graves of thousands of English soldiers
had been dug in the pestilential morass of Dundalk. It was owing to
the exertions and sacrifices of the English people that, from the
basaltic pillars of Ulster to the lakes of Kerry, the Saxon settlers
were trampling on the children of the soil. The colony in Ireland
was therefore emphatically a dependency; a dependency, not merely by
the common law of the realm, but by the nature of things. It was
absurd to claim independence for a community which could not cease
to be dependent without ceasing to exist. |