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

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.

Molyneux soon found that he had ventured on a perilous undertaking. A member of the English House of Commons complained in his place that a book which attacked the most precious privileges of the supreme legislature was in circulation. The volume was produced; some passages were read; and a Committee was appointed to consider the whole subject. The Committee soon reported that the obnoxious pamphlet was only one of several symptoms which indicated a spirit such as ought to be suppressed. The Crown of Ireland had been most improperly described in public instruments as an imperial Crown. The Irish Lords and Commons had presumed, not only to reenact an English Act passed expressly for the purpose of binding them, but to reenact it with alterations. The alterations were indeed small; but the alteration even of a letter was tantamount to a declaration of independence. Several addresses were voted without a division. The King was entreated to discourage all encroachments of subordinate powers on the supreme authority of the English legislature, to bring to justice the pamphleteer who had dared to question that authority, to enforce the Acts which had been passed for the protection of the woollen manufactures of England, and to direct the industry and capital of Ireland into the channel of the linen trade, a trade which might grow and flourish in Leinster and Ulster without exciting the smallest jealousy at Norwich or at Halifax.