The History of England, from the Accession of James II — Volume 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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