after the act of queen Anne and the subsequent statutes realative to attainder had been read, proceeded to call the attention of their lordships to the bill he had introduced. In submitting the motion lot the second reading of this bill though convinced that it was founded on justice and sound policy, and called for by a regard to good faith, he still thought some apology necessary for his undertaking to bring the measure forward. He was conscious that he was attempting to procure the alteration of a law which some of the greatest and the best men of former times had made the subject of their consideration, and which had occupied the attention of lord Somers, Dr. Burnet, and Mr. Justice Blackstone. If the interests of the people of Scotland, the influence of their peers in their lordships' House, and their representatives in the other, had as yet brought about no change of this law, it might be considered presumptuous in him, unaided by any authority, and standing there alone, to expect to accomplish so great an object. But, he trusted, their lordships would excuse his endeavour, when he stated that he was induced to 826 make it by a train of circumstances and appearances in the times, which led him to conclude that the present was the most favourable moment which could be chosen for an experiment of a liberal kind. Several reasons concurred to support him in this opinion. Through two successive sessions their lordships had been occupied, most laudably occupied, in amending the law of Scotland: they had also been employed in reversing attainders; and it was needless for him to remind their lordships, that, as in the times in which they now lived, there was no longer any competitor to the Crown, the chief ground to which the apology for the law of attainder had been rested did not now exist. All these reasons induced him to think the present the fittest, in which he could submit to their lordships such a proposition as that which was contained in the bill he had introduced. Still, however, he wished that one better qualified to do justice to the subject, and who would have had more weight with their lordships, had undertaken the task. The noble viscount opposite (Melville) knew the sincerity with which he spoke, when he said that he could have wished that noble viscount to have taken this business upon himself. It was much to be regretted that the occupations of the noble viscount did not permit him to do so. He had, however, that evening brought forward a measure which, though affording no direct argument in support of the bill now before their lordships, yet served to render evident some of the evils of which that part of the country in which the noble viscount was more particularly interested had to complain. In a few words he would state the object of his bill. It was, not to lessen the punishment of offenders, but to confine punishment to the guilty. It was brought forward to afford a shelter to the innocent. It was not founded on any morbid sensibility opposed to the punishment of crimes. Its effect, if it should be adopted, would merely be to restore to Scotland what once was the law of the country, and to which that nation had been strongly attached. It would be to realize that purpose which, by acts of parliament, the King, the Lords, and the Commons had twice in principle sanctioned. He hoped that their lordships would the more readily be induced to agree to the alteration he proposed, as the law of attainder was not analogous to 827 the law of the land, but presented a case of exception. He saw, indeed, no ground on which the bill could be opposed, unless the bugbear of innovation should be called up against it. He did not wish to condemn a proper repugnance to innovation; but, whatever reason there might be for resisting measures on that ground, no such reason could apply to the present bill. In principle, the proposition had received the sanction of their lordships' predecessors. But it might be said, that a measure which appeared reasonable in itself might be attended by great inconvenience, in consequence of the inconsistency to which it would give birth. But neither the objection of innovation nor inconsistency could be sustained. With regard to Scotland, the measure could not be innovation, for it was a restoration; it would remove an anomaly in the law of that country, which, if suffered to remain, might be attended with very serious consequences to the right of succession. With regard to England, it was surely impossible to give the name of innovation to a measure which parliament had, during the last century, wished to realize, and had only not carried into execution on account of the existence of a particular party. The principle, however, had been sanctioned; and that sanction was recorded on the Statute-book. The adoption of the measure he proposed would, therefore, contribute to render the law, consistent and uniform. The noble and learned lord on the woolsack could not, he thought, object to the measure either on the ground of innovation or consistency, for he had prevailed on their lordships to do away that most ancient practice according to which their jurisdiction used to be exercised—a practice more ancient than the woolsack on which the noble and learned lord was seated—and to delegate the hearing of appeals from courts of law to a few of their lordships. He had also consented to the doing away the trial by wager of battle in cases of murder. Why had the noble and learned lord done so? Because public convenience required the former alteration; and because, in the latter case, the law was not suitable to the times, seeing that the people of England, for whose interest the practice must have been established, had now better means of obtaining justice. The law of attainder and corruption of blood was felt to be so objectionable in Scotland, that the parliament of that 828 country in the reign of James 2nd, with them James 7th, enacted the law of entail as an indemnification against the law of attainder. He had the authority of one of the most eminent men in Scotland, and best acquainted with the effect and operation of the laws in his time—he meant lord Percival—for ,saying, that in 1475, the great inducement of the people who adhered to the cause of the Pretender was, to obtain some alleviation of the law by which entails were attainted and destroyed. He had been permitted by the kindness of a descendant of that noble lord, to look at the notes of the speech made by him on that memorable occasion, and he found this statement in them, which, as it had not then been contradicted, he had a right now to assert was entirely true. Bishop Burnet said, that at the Union it was intended to have introduced a provision respecting this law, but that the Scotch steadily refused to be deprived of the immunity which they had always before enjoyed from so cruel and unjust a regulation. In the year 1709, an act was passed for improving the act of Union with Scotland, and in this it was attempted to extend the law respecting corruption of blood to that country. But this attempt was opposed, as contrary to reason, justice, and humanity. In the valuable memoirs which bishop Burnet had left, this was distinctly stated; and even in the House of Lords the venerable earl Cowper, and the upright lord Somers, had not scrupled to recognize the principle, although they had supported the bill on the ground of existing danger—treason being then actually afloat. That act passed into a law, but there was a protest entered on the Journals of the House, signed by twenty persons, of whom there were thirteen or fourteen out of sixteen representative peers of Scotland. It then went down to the House of Commons, where the Scotchmen and Englishmen who composed it, and who seldom agreed in any thing, united to oppose it, and added a clause, providing an immunity in both countries from the operation of the law of attainder and corruption of blood. In those days the House of Lords did not think it wise or prudent to treat with contempt the voice and the wishes of the people of England, expressed through their representatives. They judiciously acquiesced in the clause, under certain modifications; and thus the law stood, making those crimes high 829 treason in Scotland which were so in England, and that forfeiture and corruption of blood should continue until the death of the Pretender. By a subsequent statute this provision was in some measure rendered perpetual; the operation of the immunity being further suspended until after the death of the sons of the Pretender. This, however, was not done without considerable opposition; and lord Hardwicke, who introduced the measure, admitted, that it was only to be justified on the ground of then existing circumstances. Those circumstances now existed no morn: all the objections which might then have been urged to the measure he proposed were at an end, and it came recommended to their lordships upon every principle of justice as well as of expediency. The opinion of Mr. Justice Blackstone was decidedly in favour of that which he had now ventured to express, although that learned judge quoted, in the course of his discussion, a passage from one of the epistles of Cicero,* and the treatise of Mr. Charles Yorke on the law of forfeiture, both of which were opposed to his own views. It was whimsical enough, that neither of those quotations would now be received as authorities against the opinion of our great English jurist, because it was doubted whether the epistle which contained the quotation was really written by Cicero; and Mr. Yorke's treatise was denied to be law. If, however, all the grounds which he had mentioned did not exist, still, upon every principle of justice, of humanity, of sound policy, and of prudence, he hoped to induce their lordships to adopt the bill before them. He believed he could prove, and but that the House was already wearied he would attempt to do so, that the whole course of history showed that the effect of the cruel laws which he wished to see repealed was rather to create than to repress treasons. In a neighbouring country the effect of a confiscation which had not, indeed, been adopted by any legislative authority, but by an universal revolution, was now felt and seen; and demonstrated upon a large scale what must necessarily be the result of such circumstances. The Bourbons,*Nec vero me fugit, quam sit acerbum, parentum scelera filiorum pœnis lui. Sed hoc præclarelegibus comparatum est, ut earitas liberorum amiciores parentes reipublicæ redderet.830 with all the advantages of their legitimacy and the other advantages legitimate or not, which they possessed, found the kingdom over which they ruled, in a state of such discord and disaffection, that their utmost efforts were necessary to prevent actual disturbance; and this was produced merely by the struggle and jarring between that part of the nation who had lost their property, and that part who had gained it. It was enough, however, for an English House of Lords to know, that the principle of the bill which he had brought in was one which was implanted more strongly in the heart of man than perhaps any other; namely, that the innocent should not be punished for the crimes of the guilty. Upon these grounds, he should conclude with moving the second reading of this bill.
§ Lord Colchester said: —
My lords, as the bill of which the second reading is now moved by the noble baron, is directed to the repeal of a law which I had the honour to propose in the other House of parliament about six and twenty years ago, it may be not unfit that I should state to the House, whether I still continue to hold the same opinions upon this subject which I then entertained; and more especially after the arguments which we have heard this day.
But as the principle of the existing law does not rest upon grounds which are liable to shift or change by lapse of time, so neither have my sentiments upon it undergone any alteration; nor do I see, why we should now be endeavouring to make treason in any degree cheaper, or to lower the penalties upon rebellion.
The principle which in almost every age and every country has been adopted with regard to treason has been the same. It has been thought right, that men disposed to engage in rash and violent undertakings, which may shake the foundations of society in the state under which they live, should be restrained by every consideration which can affect the heart and mind of man: and as many, who would not scruple to risk their own lives upon such a perilous issue, might nevertheless be restrained by the apprehension of involving in their own fate the interests of those who are dearer to them than life itself, the law has wisely operated upon those powerful motives for securing the general interests of the state.
Upon this principle the oldest laws of this country have proceeded; and the pe- 831 nalties of forfeiture and corruption of blood for the crime of treason continued in full force in England from the Saxon times to the period of the Union with Scotland. The law of forfeiture for treason was of like antiquity in Scotland, and continued in force there till the year 1690, at the period of the revolution, when it underwent a modification which lasted only sixteen years; corruption of blood, though not altogether unknown to the law of Scotland, was certainly not an established consequence of the same offence.
When the Union took place, the law of treason was made the same for both parts of the United Kingdom; and the penalties of forfeiture and corruption of blood, being considered by parliament as necessary checks to prevent that crime, were extended also to the whole kingdom,* with the concurrent authority of lord Somers and lord Cowper, and the most eminent men of those times; for the opinions of public men must be judged of by their public acts.
It is true, that the period for the continuance of those penalties was limited to the period of the danger immediately apprehended, namely, the life of the Pretender: but such was the assumed expediency of annexing these penalties to this crime whenever the danger did exist, that the period was again prolonged in 1744,† to the death of the Pretender's sons, at the instance of lord Hardwicke in this House, and of sir Dudley Ryder in the other House of Parliament; and whatever weight the noble lord may ascribe to the authority of sir William Blackstone upon this subject, we on the other hand have that of Mr. Yorke;‡ and sir Michael Forster, in his celebrated discourse upon high treason, strongly intimated his opinion that such a law should not be suffered to expire.
Upon the breaking out of the French Revolution, this country was beset with new dangers; and traitorous conspiracies of the worst description, having sprung up, it was again thought proper to keep on foot the same penalties; and as the duration of the law was to be made commensurate with the possible recurrence of the crime, it appeared to parliament* Stat. 7 Anne, c. 21.† Stat. 17 Geo. 2, c. 39.‡ Considerations upon the Law of Forfeiture.832 that the wisest course would be, to make the law perpetual.
Of the cases of compassion which may arise under such laws, as it is our happiness to live under a limited monarchy, with the standing council of parliament to advise and direct its measures, we have no reason to doubt that in all fit cases, and on fit opportunities, the royal mercy will be duly exercised; and past experience, as the noble baron well knows, and as we have all witnessed even upon this day, may justify us in expecting similar acts of royal beneficence in times to come. A long catalogue of forfeitures, with the destruction of many great families in the tumultuous times of our history may certainly be enumerated; but if the noble lord would tax his memory with equal diligence on the other side, I am persuaded that he could cite many a signal instance in the history of the great families of this country, where the turbulent spirit of many a Hotspur has been checked by the sight of his surrounding family, and the strong ties of domestic affection have arrested the career of a mad and desperate ambition.
With respect to corruption of blood separately considered, and its consequences, I will not enter into those details of law which others more learned will handle with infinitely more ability.
But thus much I must observe; that by the present bill, as I understand it, if corruption of blood is taken away from treason, all the valuable provisions of the statute of king William* for the protection of persons tried for that offence, which gives them the lists of witnesses and jurors, and the full defence by counsel, will be all swept away, the noble baron cannot possibly intend; for it is clear that these protections are given only to those crimes which work that consequence.
Upon this head I am well aware that endeavours have been made heretofore to take away corruption of blood, as a consequence of these offences, by the learned and eminent person whom the noble baron has named, I mean the late sir Samuel Romilly, whom I knew well, and for whom I had a sincere respect and regard. We often conversed upon this very question: but in those many conversations, he never presumed to express a hope that he could obtain a repeal of the law of forfeiture;* Stat. 7, 8, Will. 3, c. 3.833 and although he in two successive sessions endeavoured to remove corruption of blood in the cases of treason, petty treason and murder, he succeeded only in removing it from the lowest classes of felony.* If the bill which finally passed into a law had included the cases of petty treason and murder, I should certainly not have been dissatisfied; and if a bill to that effect were now proposed by the noble lord, it would at least have my concurrence.
Upon the whole matter, my lords, I trust that the law, which, after prevailing for so many ages in this country, was on full consideration established in principle and extended to Scotland at the Union, which was again continued in the reign of George 2nd, and finally upon further discussion made perpetual in the last reign, will be allowed to remain a part of the permanent law of this country; and therefore I shall take the liberty of moving, as an amendment to the original motion, to leave out the word "now" for the purpose of adding the words "this day six months."
The Earl of Rosebery
supported the bill. He said he believed that if noble lords knew all the grounds upon which it came recommended, they would not withhold from it their approbation. To continue the existing law was, he insisted, a direct breach of the 18th article of the act of Union. That it was a grievous infringement upon private rights would not be denied, since it deprived men of the power of bequeathing their property by will—a power which they had enjoyed long previous to that law which, upon pretexts to him wholly indefensible, restricted it. Even if it was thought right still to continue the law in England, where it had of old been the law of the land, yet it ought not to exist in Scotland; because it was an innovation upon the law of that country, and had been forced upon it only as a temporary measure. Was there any man in the present day who would be so bold as to propose—was there any parliament cruel enough to adopt—such a law? Confident as he was that these questions must be answered in the negative, why, he would ask further, was so unjust and unnecessary a law suffered to continue? No man abhorred the crime of treason more than he did; but his wish to see this law repealed was because it* Stat. 54 Geo. 3. c. 145.834 inflicted upon the innocent a punishment which had been deserved only by the guilty. The bill before the House was founded upon the principles of good faith and sound policy; and now that the fears and the feelings which had influenced the adoption of different measures had ceased, this ought to be allowed to prevail. He should therefore vote for the original motion.
said, he viewed the subject very much in the same light as the noble baron on the cross-bench (Colchester). The chief ground on which the advocates for the measure relied was, that it was a breach of faith—an infringement of the provisions of the act of Union; but he apprehended that both the noble mover and the noble earl who spoke last had much overstated the case, and had carried their argument to a length by no means warranted by the facts of history. As to forfeiture of property, down to the year 1690, it was the ancient common law of Scotland, that a traitor fofeited not only his lands, but his honours. He made this statement on the authority of a most distinguished lawyer, baron Hume, and he had no doubt that it was correct. From that principle he felt no inclination to depart; for it seemed to him, that forfeiture of lands and honours, on the part of a traitor, formed a part of the punishment of treason, and was extremely salutary, as it deterred others from pursuing the same projects of rebellion. He fully admitted, at the same time, that the law, as far as regarded corruption of blood, was not defensible; and he should have been glad to have given it is support, if the measure introduced by sir S. Romilly in 1814, had included petty treason and murder as well as high treason. He was not prepared to go quite the length of the noble mover on this point; but, allowing that some change was expedient, he contended that it was fit to adhere to the ancient law of Scotland; at least as far as regarded the forfeiture of property.
§ Lord Redesdale
said, that it was almost impossible to frame any law of public policy which did not in some degree affect or infringe private rights. The legislature in former times had wisely adopted every measure to prevent the commission of the crime of treason. Such had been the original object of the law of forfeiture; and, in his opinion, it had been attended with the desired effect. If it were not likely to produce that consequence, why 835 had such a law been passed? In 1706, and at subsequent periods, when the statute had been continued, and finally when it was made perpetual, as far as regarded Scotland, such had been the design of all those who had concurred in the undertaking. An anecdote, which he had from good authority, would illustrate this point. In the year 1745, a noble lady had good reason to think that her husband was secretly engaged with the rebels, and having forged a warrant, he had him arrested by a pretended officer, until an authentic warrant and a real messenger could be sent down by the Secretary of State; thus she truly boasted afterwards, that she had saved the estates and honours of the family. In rebellions, the greatest danger was to be feared from the co-operation of men of rank and wealth with the disaffected. Could it, then, be denied, that a law which secured the fidelity and obedience of men who had honours and property to transmit to their descendants was highly efficacious? Annexed to this bill, he perceived some provisions which were not in themselves objectionable. They ought to stand alone, that their merits might he separately judged and ascertained. He most decidedly objected to coupling both together, for the sake of securing the votes of individuals who were unwilling to relinquish the good because it was attended with some evil. Looking at the measure as a whole, he concurred in the amendment.
The Lord Chancellor
felt the importance of the measure before the House, and, entertaining a very sincere respect for the noble lord by whom it was introduced, he regretted that he could not approve of it as it stood. The law of forfeiture and corruption of blood, as applied to cases of high treason, afforded a vast security to the public peace. With respect to other crimes to which the same penalties attached, he was not prepared to say that he thought the law might not be safely and judiciously altered. If their lordships would take the trouble to read this bill, they would see that it was extremely doubtful whether, under the terms of it, corruption of blood was taken away. Of honours to which it was evidently meant to apply, no mention occurred until the latter end of the bill; and, although it was evident that honours were meant to be included, no lawyer would say, that the words "lands, tenements, and hereditaments" could be made to ex- 836 tend to honours. All such grants of honours as the bill was meant to extend to were to a man and his heirs, but still the actual possessor had the entirely of the honour, and for this reason,—when it was once forfeited, it passed away altogether. Another objection to the bill was, that the course of the common law would in some instances, be opposed and interfered with; because persons entitled to remainders in tail would, under the operation of this bill, become seized in fee upon the attainder of the tenant, and without the process of common recovery, by which alone an estate-tail could be legally converted into a fee. The bill was defective also, inasmuch as it neither provided for the transmission of chattels, some of which were not less valuable than estates in fee, nor of goods which, in a commercial country abounding in persons of wealth, was a matter of no less importance. These were, however, only details which might be easily obviated. With respect to the principle of the law of attainder and corruption of blood, he thought, when it was considered how extensively ruinous the consequences of treasonable practices might be, to the peace and the very existence of families, there was no reason to complain if some portion of the punishment of a defeated treason was made to fall upon the families of those by whom it had been set on foot. He saw how difficult it would be, to restore to Scotland the law as it had existed before the Union; but he thought the best course that could be adopted would be to bring in another bill. If this should, however, go into a committee, he should be obliged to propose, that high treason should be left out, and that petit treason and murder should alone be the subjects of the proposed alterations. Unless this were done, he should support the amendment.
The House divided For the amendment, 15: Against it 12: Majority 3. The bill was therefore lost.