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The History of England from the Accession of James II
By Thomas Babington MacAulay
Volume 5 Part 2


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.


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