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on account of the rigour attendant on this worst consequence of attainder, that many high authorities were desirous of putting an end to corruption of blood. Mr. Justice Blackstone had avowed that opinion. He said that "as every other oppressive mark of feudal tenure is now happily worn away in these kingdoms, it is to be hoped that this corruption of blood, with all its connected consequences not only of present escheat, but of future incapacities of inheritance, even to the twentieth generation, may, in process of time, be abolished by act of parliament, as it stands upon a very different footing from the forfeiture of lands for high treason, affecting the king's person or government. And, indeed, the legislature has, from time to time, appeared very inclinable to give way to so equitable a provision, &c." What were the sentiments expressed by a lord Auckland in his excellent treatise on the principles of the penal law? He agreed with Blackstone, and declared that "with pleasure he saw the approach of that day, when the posthumous rigours of forfei. tures would cease; and the impediments of descent no longer affect a blameless posterity." And in another passage the same judicious author had said "we may safely conclude that corruption of blood with all its endless consequences, will have a speedy and total abolition, as any farther intervention of parliament therein would be contrary to the sacred regard due to national compacts.' An hon. baronet (sir F. Burdett) had declared that any attempt to perpetuate forfeiture and corruption of blood was contrary to the terms of union with Scotland. It was thought desirable at the time of the union, that the law of treason, should be rendered uniform in both countries. The English House of Commons maintained, that this uniformity would be best effected by the abolition of forfeiture and corruption of blood throughout the united kingdoms: and in that idea it was supported by the Scotch nation, whose punishment of treason was, in some respects, milder than in England. The House of Lords resisted; and at length it was agreed, that, if Scotland would consent to make itself liable to the English forfeitures and corruption of blood for a time, namely, until the death of the then Pretender to the throne, those severities should from that period be annulled in every part of Great Britain. By a clause in the 17th of Geo. 2nd, c. 39, the effect of the statute of Anne

apon the delinquent, and not the effect of any law against themselves. And strange, indeed, did that man reason who, because a convict could not endure any kind of punishment, without affecting in a'greater or less degree those with whom he was nearly connected, would therefore aggravate their sorrows.-Enough, he thought, had been said to make it apparent, that nothing could palliate the injustice of taking from the child of a traitor his paternal inheritance; and if that were not vindicable, still less so was corruption of blood. An example might, perhaps, serve to render this subject clear to those who are unaccustomed to legal investigation. A grandfather is seized of an estate in fee; his son, who has a family, commits treason, is tried, convicted, judged, attainted, and executed. By the law of forfeiture, his children cannot succeed to his lands or tenements in the course of descent; by the horrid doctrine of corruption of blood, the innocent children and their descendants can not inherit the estate even of their innocent grandsire. The inheritable blood of the traitor being considered as extinct, no person whatsoever can claim any heredita ments through him. Surely gentlemen must recoil from the contemplation of these posthumous severities. Little less terrible was the law of the' Macedonians and Persians, which doomed to death, not only the traitor, but even his distant kindred, nay his whole race. He could not help recollecting, while he was upon this part of his subject, the famous golden bull of Germany, which enacts, that although the lives of the sons of those who conspire to kill an elector, are spared by the mere bounty of the Emperor, yet they should be deprived of eligibility to all offices of honour or emolument, should be deprived of the rights of succession to all property," to the end that being always poor and necessitous, they may for ever be accompanied by the infamy of their father, may languish in continual indigence, and may find their punishment in living, and their relief in dying." The same inhuman language must now, he said, be used by the advocates for corrupting the whole blood of the traitor. They would interrupt the course of descents, that his children, and all his claimants deriving title through him from any remoter ancestor, might never know the advantages of inheritance, and thus find "their punishment in living and their relief in dying." It was

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was suspended until the death of the sons his subjets. Another argument in support of the Pretender, one of whom only was of this bill was derived from the peculiar now living, an aged man the last of the circumstances of the times. A neighStuart line. This suspending clause was bouring country we were told, had furdeclared by Mr. Fazakerley, an;eminent nished an unhappy proof of the baneful lawyer of that day to be subversive of the tendency of Jacobinical principles-such conditions of the union. If, then, a pro- principles, wherever they had been refongation of the existence of these post- ceived, had carried destruction in their humous rigours beyond the period assign train. Were not secret societies formed, ed by the statute of Anne were a breach upon the French model, in this country, of faith, what must be thought of this for the wicked purpose of undermining our measure, which had for its object the per- constitution, our religion and our laws, and petuation of them? Well, therefore, might substituting, in the room of subordination the hon. baronet exclaim, "what a lesson and regular government, the horrors of do you here hold out to Ireland!" You anarchy and revolutionary tyranny? Was declare, that an incorporative union be- it not evident, by the report of the secret tween England and Ireland would be for committee, that treason was prevalent at the happiness of both countries. Ireland, this moment, even in England? Taking enchanted with her independence, refuses for granted all the statements in that reto listen to you even for a moment. You port, there was no treason among the persevere, and determine to record upon lower orders of men, who were not likely your journals the fair, liberal, and advan- to pay much regard to forfeitures and contageous proposals upon which you are fiscations. But if it were supposed that willing to ground your treaty. But what the traitorous societies, said to abound in is the language of this bill? Incorporative this country, had been joined by many union has no fundamental laws for its basis, persons of rank or property, then the rigofrom the instant it has taken place, the rous penalties, now under consideration, sovereignty is in the united parliament, had been proved to be ineffectual; and which may enact whatever it deems for strange it was, in pleading for the contithe public good, without any regard to nuance of laws, to appeal to their ineffiprevious conditions, without adherence to cacy. It would be more conformable to engagements, or observance of compacts. good sense to apply for the repeal of such Must not this bill then excite in the Irish na- useless laws, and to contend, either for tion additional disgust against your favour- the introduction of others of a severe comite project of a union? In this light the bill plexion, better adapted to existing ciris no less impolitic than unjust and inhu- cumstances, or for the adoption of milder man. The hon. mover had observed, measures and a more lenient system. that if forfeiture and corruption of blood, The latter was the conclusion which he in cases of high treason were suffered to inferred from the report of the secret expire, there would be an inconsistency in committee. How different, then, were our laws, because those punishments were the impressions which that report had annexed to many kinds of felony; and made upon his mind, from those which it that thus the man, who should take away had excited in the breast of the hon. gen. the life of his sovereign, or excite rebel- tleman to whom the perusal of it had suglion and civil war in the country, would be gested the propriety of bringing forward less punishable than him who was guilty this measure-Would you, Sir, prevent of an offence much inferior to the crimen the spread of treason and sedition? it is lesæ majestatis. This certainly was true; to be accomplished not by coercive laws, but there was an obvious remedy-by one not by rigorous punishments; but by the general and undistinguishing statute sweep correction of abuses, by the redress of away forfeiture and corruption of blood, grievances, by the mildness of your gothe principle of which admits of no justifi-vernment. Thus you take away from the cation or excuse, and the inconsistency is cured. And with respect to the life of the sovereign, that is sufficiently protected by the statute 25th Edw. 3, c.2, by which an intention to destroy the king is made equivalent to the actual murder of one of

* See vol. 13, p. 884.

ambitious and the desperate every engine calculated to work upon the minds of the lower orders. There is no truth of which I am more strongly convinced than thisthat no insurrection, on the part of a people, for the purpose of effecting a change in the form of government, can ever rise to a formidable height, if their

freedom be not violated, if oppression be not suffered to exist. I wish I could flatter myself that the House was likely to concur in the sentiments I have expressed for I should then indulge the pleasing prospect that, upon the decease of the cardinal of York, men would be no longer liable to be tried, after their bones had been deposited in the sepulchre of their ancestors, that the sacred silence of the grave would be no longer profanely disturbed, and that innocent orphans and their posterity would be no longer devoted to infamy and ruin.

Mr. Jones said, it had been observed, that the Jacobins in this country amounted to 80,000. He did not believe there were near that number; but he was very sure the present measure would tend to create them. It was hard to visit the sins of the father upon the children.

The question being put, that Mr. Speaker do now leave the chair; the House divided:

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Lord Holland rose to oppose it. He stated the nature of the punishment, proposed by the bill to be rendered perpetual from Blackstone, where it is described not only as the deprivation of every species of property, but as destroying the inheritable quality of the blood, by forbidding any title to be derived, through the person convicted, to his posterity. Having dwelt upon the great extent of this punishment, he argued on the inefficacy of it, resulting from its overstrained severity. In two ways, severe laws defeated their own object-by increasing the difficulty of detection, and by diminishing the respect for the laws. Where punishment exceeded the bounds of necessity, all the good passions of mankind were excited, not against the crime and the criminal, but against the punishment and the laws. Men of kind and generous natures were not disposed to see them inflicted; and even in cases where they were put in execution, the criminal,

instead of exciting indignation, became an object of pity. But if this was the case with the offending party himself, how much more strongly must the best passions be armed on his side, if the eye, turning from his execution, should see the punishment entailed on his innocent posterity! The injustice of this law, the appeal which its victims made to the feelings of mankind, was not transitory but permanent: the unhappy descendants were continual objects of pity and commiserration, and lived generation after generation libels and satires on the justice of their government. A law thus operating on the guiltless was founded in injustice, and contrary to the fundamental principle of right and equity. His lordship then took a view of the arguments on which it had been from time to time attempted to be supported. One of these was to be found in the late Mr. Yorke's pamphlet ; a book, the reputation of which was more owing to the celebrity of the author than its intrinsic merit-a composition of such erudition, but tedious without parallel; heavily written, and miserable in . point of reasoning. In it Mr. Yorke stated, that the objection grew out of the nature of society, in which it would be found impossible to punish the guilty in any instance without affecting the innocent. This argument was founded in fallacy; it was taking up that as a principle which was merely incidental; it was saying-because, from the nature of society, his innocent connexions must be involved in the fate of the guilty, we should therefore act upon it as a principle, and totally disregard them in apportioning the punishment-because, says this notable argument, we cannot punish the guilty without affecting the innocent; we will therefore begin by punishing the innocent, in order to affect the guilty. Cicero was another authority adduced by the advocates for forfeiture and corruption of blood. That great orator had laid it down, that the state had a right to avail itself of the best feelings of men for its security, and the prevention of crime. In the passage, however, where this sentiment was expressed, the author was defending an imputed act of injustice, and therefore it had not all the weight of a pure, ingenuous opinion. But, even admitting that it had, it was liable to objection; as upon the same ground he might justify torture, and every other act of tyranny and injustice

that arbitrary power had ever resorted to. If this principle were true, where could we stop? Why are we to condemn those laws which, in Persia and other Eastern countries, murdered, for the crime of treason, the children, the parents, the relations, the friends of the offender? His lordship next adverted to the arguments drawn from the nature of property and inheritable succession, as the creature of society, and a favour from government. This, he said, was the very Jacobinical doctrine so much abused. Admitting, however, property to be such a creature, and the right of transmitting it to his posterity to be a favour from government to the subject, it did not follow that they should be withdrawn at pleasure. But here, too, the principle of injustice recurred in an increased degree; for if the power of transmitting property were a favour, the power of inheriting it was surely a greater favour; and therefore he that enjoyed the less favour by his actions, drew on the innocent the loss of the more important favour. To interrupt its descent, was to punish the guilty a little, but the innocent to an enormous extent. Then we were told, he said, of a conspiracy in the country to overthrow the government, and divide the property of the nation among the desperate and necessitous; it was described as a system of treason, in which the poor were armed against the rich; and therefore this law was to be introduced as a remedy. Now, if this statement were true, to perpetuate the law of forfeiture and attainder was most needless; for how the disability of transmitting his property, should operate upon men who had none, he was at a loss to discover. Considering, then, the moderation of our ancestors in that in which they were the least moderate; considering that even they, to punish and restrain treason and rebellion in the case of men whose rank and fortune brought them particularly within the terrors of such a law, had only made it temporary, he could not consent to see it, on so much weaker grounds, rendered perpetual. He would leave, however, all abstract and speculative doctrines, and proceed to what carried ten times more conviction to his mind than all the writings of Grotius, Puffendorf, and Cicero, even supposing the opinions of the former to be as clear and explicit as they were dark and intricate, or of the latter to be as positive and uniform as vague and variable. He meant that

which was preferable to all theory and visionary systems, the wisdom resulting from practice and experience, and the consequences to which the measure, so far as it was hitherto acted upon, had led. For this he would not refer their lordships to the history of England, but to what was passing in the sister kingdom. It was well known that the population of that country was divided into papists and protestants, the latter of whom possessed the confiscated property that once belonged to the ancestors of the former. Now, what was the alleged object of those charged with treason and rebellion? Why, to dispossess the Protestants, and recover that property of which the papists were deprived by the laws of forfeiture, beneath which they had fallen. He meant not here to examine whether these charges were true-the Protestants af fected to suspect the Catholics of such designs: whether they really entertained such monstrous intentions, or whether the Protestants wickedly imputed that intention to them to furnish them with a pretext for oppressing, still in either case the laws of forfeiture were the fountain from which such designs or such oppression had their source: to them the distracted state of Ireland was to be attributed. Here, then, we had before our eyes the growth of this law, its progress and its fruits; a law which engraved on the heart and mind of the subject his injujury and his wrongs: which entailed them from generation to generation; which rendered it impossible for him to forget the injustice he had suffered; which armed one part of society against the other; which made a man's neighbour his despoiler, preventing him from becoming a useful member of society, because at his birth it deprived him of the means, as a zealous supporter of the state, which had interdicted him from its benefits. Such were the consequences of the law as experienced in Ireland; a law which had spread hatred and dissension through the land, and rendered jealousy and dislike perpetual; a law which, at the moment dissentions were on the point of being healed, stepped in between the parties, and said, No; there shall be no reconciliation, no tranquillity, no amnesty; the feuds which have existed, shall exist for ever; the wounds which are inflicted shall never be healed, and dissention shall be your portion; suspicion on one side, and vengeance on the other, shall be your

was apt to speak rather whimsically, the late lord Egmont, chose to argue the clause which he had mentioned, as a clause intended to operate as a toleration for treason. The learned lord stated why in the present bill, that clause was omitted; and took notice of the Considerations on the Law of Treason, written by the late Mr. Yorke. He said, it was a work to which it was usual to look up as the composition of a man well acquainted with his subject.

nheritance. "Pungent ipsique, nepotesque." Regarding, then, the doctrine of forfeiture as the great source of the troubles which distracted that kingdom, he must deprecate the idea of rendering it perpetual in this. The punishment of confiscation was the favourite and dreadful engine of arbitrary power, because, at the same time that it glutted its revenge and cruelty, it gratified its avarice. It had been the tyrant's resort in all times and in all countries, even in our own. He did not allude to the present day; but as it had been formerly resorted to for the worst of purposes, such times might come again. This objection had the more weight with him, as he saw ministers embarked in schemes of enormous expense, how, then, could he be certain, but this law, if rendered perpetual, might not hereafter be used to furnish a supply for the wants such expense must unavoidably create? It had been used as an engine for such purposes once: what security had we that it might not be so used again? The recent history of France furnished a case of such application. He must also consider it as a breach of contract with Scotland. It was an implied condition of the union, that this law should be suffered to die away; and it had been afterwards relaxed in favour of individuals; but now this promised indulgence was to be withdrawn, and it was proposed, contrary to the merciful indulgence so long held out, to render it perpetual.

The Lord Chancellor said it was a mistake in the noble lord to state the present bill as a new law, and a law foreign to the constitution. It had made a part of the law of England from the earliest times, and had suggested itself to the wisdom of our ancestors, as a law actually necessary to be in force for the safety of the state, from periods of the remotest antiquity. The bill which this bill went to repeal, was an act of the 7th of queen Anne, in which some persons were enabled to obtain the insertion of a clause, the apparent object of which was somewhat extraordinary, as its tendency was to insinuate that treason, instead of being a crime of greater magnitude, was of less import and weight than other felonies. Some years back a debate occurred in one of the Houses of Parliament upon the subject, in which a near friend of the noble lord eminently distinguished himself; and on that occasion, a person who [VOL. XXXIV.]

The Earl of Radnor said, that the expediency of the law of forfeiture was very much doubted by many great lawyers in former times, and he thought its tendency at any period to prevent treason extremely questionable. The treasons abroad in the present day, however, were not of a species which this bill would be very likely to affect. Since they had been afloat, there was but a solitary instance of the application of the law in the case of a younger branch of a noble family in the sister kingdom. With respect to that case, indeed he much doubted whether forfeiture had been properly applied. He did not mean to give any opinion as to the guilt of the individual, but he thought that the proceeding was very doubtful, because the party had no opportunity to defend himself, and there was a possibility, that he might have been innocent, since he did not fall in battle against the crown and government; a case that could leave no doubt as to guilt. He begged leave also to remind their lordships of the maxim of the divine law, that a son was not to suffer for the iniquity of the father. He was decidedly against the bill.

But

Lord Grenville admitted, that if the present description of treason was a conspiracy of the poor against the rich, forfeiture could have little effect on those who had no property to forfeit. while the great mass of traitors were, perhaps, of that description, there were men of rank and property in the back ground, by whom they were instigated, and without whose influence their efforts would be of little avail. In support of this assertion, he referred to the late duke of Orleans, who had taken so active a part in the French revolution; and also to the case of lord E. Fitzgerald. It was therefore necessary to take care, that every obstacle should be thrown in the way of men of rank and fortune, who should be willing to delude the multitude into acts of treason and rebellion.

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