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him ; it was in the indictment only that He could see no existing necessity for the overt act was set forth, which was any extension of the criminal law. He adduced as a proof of the treasonable in- proceeded to state some of his objections tention of the person accused : but in to the several clauses in their order, and cases of felony, the specific act or crime adverted particularly to that part of the was set forth in the warrant of commit- first clause which makes intention crimi. ment; and therefore the party had not nal, although it should not be followed up the same occasion for a copy of the in- by any act--to the monstrous partiality dictment. As to the aid of counsel, it exhibited in the same clause, by which a was not denied in prosecutions even for man might enter into the most extenfelony; for as often as a question of law sive contract for sending woollen cloth arose, the prisoner was allowed to be to France but if he should happen to wrap heard upon it by his counsel. Were coun- up along with any parcel of it only a sel to be allowed to speak on matters dozen pair of shoes, he would be liable to of fact in trials of felony, and were copies be tried and executed for treason-and of indictments granted ten days before the danger of depriving persons tried for trial, it would be absolutely impracticable treasons under this act of the benefits to execute the criminal law of the coun- given by the acts of king William and try. With respect to the granting the ac- queen Anne. He conceived the bill to cused a list of the witnesses in all cases, be totally unnecessary; and only intended it would be of little use to him, as a list to continue the alarm which had been of such a cloud of witnesses might be sent raised. to him, as would render it impossible for Mr. Courtenay reprobated the bill in him, with all the assiduity of his friends, the most severe terms, and said, that the to inquire into their characters in the grossest deception had been made use of space of ten days.
with respect to the clothiers in this counMr. Fox said, he was well aware that try, who were placed in a most dangerous in cases of felony, the accused had a right situation, if, by sending woollen cloth to to be heard by his counsel on questions France, they should be guilty of treason of law; but it was on such questions only under the 25th Edw. 3d. that the advice of counsel might be neces- Mr. For said, that as in every stage of sary; and therefore the right hon gentle. this bill he had entered his protest against man had misunderstood him if he fancied it, he should conceive himself wanting in he did not contend for the extension of his duty to himself and to his constituents, the indulgence to every point which might if he now suffered it to pass in silence. He enable a counsel to defend his client with therefore was ready to declare, that in the effect. As to what the right hon. gentle course of his parliamentary life he had man had said about furnishing the accused never seen a bill so unfounded in policy, with a list of a cloud of witnesses, he was and which was contrived so effectually to absolutely astonished that a minister of the violate every principle of justice, humacrown should suggest even the possibility nity, and the constitution, as the one in of a public accuser swelling the number question. The right hon. the chancellor of witnesses, for no other purpose than of the exchequer had, in defending it, that of baffling the law, by putting it out confounded two things, in their nature of the power of the prisoner to avail him- the most distinct, the principle and the self of the advantage which it was the in- pretext of the bill. He had said, that tention of the legislature that he should the principle must be unobjectionable, beenjoy in its fullest extent.
cause it was to prevent supplies of military The House at last divided on Mr. stores and other necessaries from being Adam's motion: Yeas, 32; Noes, 110. carried to the enemy : but this was the
pretext for bringing in the bill, not the April 9. The bill was read a third principle on which it was founded. The time. On the question that the bill do bill was much better calculated for enpass,
trapping individuals, than for guarding Mr. Curwen said, that nothing had oc- them against the perils of high treason. curred in the progress of the bill, which Mr. Fox said, it would be discovered could induce him to alter the opinion he that they who opposed the bill were, in had at first formed, that its principles were truth, the sole persons who endeavoured contrary to the just and true principles to thwart the designs of our adversaries, both of criminal law and of sound policy. while its supporters were giving every advantage to our foreign foes. But on the exposed his life to destruction in similar grounds of its impolicy he did not now circumstances. This was, indeed, a sanmean to argue. He recurred to the prin- guinary part of the clause ; and late as ciples of justice and humanity, which the stage of this bill was, he trusted the were superior to all policy, and on which House would still recede from it, covered alone true policy could rest. In the in- with shame and confusion for having entroduction of this bill, it had been said, tertained it so long. that part of it was declaratory of the old There was another clause in it, which law, and part of it contained new enact- was also sanguinary, but which was, if ments. But, we were now told, that all possible, more absurd than sanguinary ; of it was both declaratory and new; and it was that which made it death in an by this sophistical quibbling, the under- Englishman-to do what? To return to standing was confounded, and gentlemen his native country! An Englishman were at a loss what opinion to form, or might go to Ireland, and there agree, upon what ground to proceed.
without guilt, for the purchase of an esThe first clause was merely declara- tate in France; he might go to Hamburgh, tory. It did not abrogate the statute of and there make a like agreement, and that the 25th Ed rd 3d. It did not make would be only an inchoate crime: he that not to be treason, which before was might pay the purchase money, and by treason, under pretence of defining the his attorney take possession of the estate; law of treason; it served as a snare to en- all this would not amount to high treason; trap the unwary and inconsiderate. It but should he after this return to his native would have been more proper, more can- land, this return would consummate his did, and more just, openly and specifi- guilt, and bring upon him the penalties cally to have stated, whether sending of treason. Some gentlemen might think cloth to France was or was not treason. such a clause as this without a precedent; This might easily have been done by an but in fact, it was not; it was stolen from express clause for the purpose; whereas, the National Convention, where the most according to the present existing law, if arbitrary laws were enacted for ascertainthe bill should pass, these clothiers would ing who should be deemed emigrants, and still be liable to the penalties of the old which afterwards devoted them to death, law, without the possibility of their know, if they should presume ever to return to ing whether they were guilty or not, and their native country. at the same time rendered obnoxious to a In the discussion which had taken place severer punishment than that which the last night, it had been asserted, that no present bill inflicted.
He would not re- act was tyrannical which tended to bring peat the arguments he had formerly ad- the guilty to a certain and speedy con. duced against the first clause of the bill. viction; but, was not the acquittal of inBy the wording of it, however, he could nocence, as well as the punishment of not help again observing, that the mere guilt, an essential object in every humane agreement to commit an offence, and the code of criminal law? Why, therefore, offence itself were put upon the same were persons, who were indicted under footing, and liable to the same conse- this act, to be deprived of the benefits of quences. Inchoate crimes were classed in the statutes of William and Anne? By the same degree of enormity with those these acts, a copy of the indictment was which were completed; and, by this con- to be granted to the prisoner; counsel fusion, every rational doctrine of criminal were permitted to plead for him on quesjurisprudence destroyed. Although a tions of fact, as well as questions of law, verbal agreement for a lease of above and what was, perhaps, of more importance, three years, and for a sale of goods above were allowed free communication with the value of ten pounds, was declared ab. him at all times. To these important prisolutely void by the statute of the 29th vileges were superadded that of having a Charles 2d, because of the ease with which list of the jury who were to try the priperjury in these cases might be com- soners, and of the witnesses who were to mitted, yet this bill wantonly exposed the be adduced against him. A reason had life of an individual in cases where per- indeed been assigned by the right hon. jury might be perpetrated with equal faci- the chancellor of the exchequer, for withlity. The former wise statute would not holding this privilege in the present inpermit the fortune of a man to be injured stance, which he confessed he was sorry, by such means; the present bloody bill as well as ashamed, to hear assigned. The House had been told, that this pri- | of all others the most odious and detestavilege was rendered perfectly nugatory, ble a tyranny which wounded under the because the crown could give in such a garb of mercy. numerous list of witnesses that the pri- He could not help again taking notice soner could not possibly inquire into their of the severity of the hill, in submitting situation, or have an opportunity of know all persons to be tried, without the assisting who were really to be produced against ance of a gentleman of the learned profeshim. If such an artifice was ever made sion to address the jury for them. He use of, either by the right hon. gentleman, must say, that allowing counsel to speak or the other servants of the crown, he for them appeared to him an important trusted there was still virtue enough in point. It had, indeed, been said, that the House, and spirit enough in the na- this bill was founded upon the general tion, to call them to a severe account for principle of the laws of treason, and on such notorious misconduct. But, amidst the 25th of Edw. 3d. That was only a all the severe enactments with which this pretext as he had said before. Was the bill was filled, they were still said to be fact so ? Not the least like it. Was it null, because the operation of the laws of no advantage to a poor man in prison, acforfeiture was prevented from attaching cused of high treason, to have a counsel upon the persons who might offend within to visit and attend him, and to assist him this bill. He lamented, in pathetic terms, in making out his defence? Was it of that because this bill was not to work cor- no advantage to a person thus accused, ruption of blood, a person accused of a to have a list of his jury before his trial breach of it was to be deprived of the aids for perusal? Was it of no advantage to and shields which were allowed by the 7th a person so accused to bave a copy of his of William 3d. to persons accused of indictment several days previous to his high treason ; the distinction of treasons being called upon to appear upon his trial? working and not working corruption Was it no advantage for such a person to of blood, was to cease at the death of car- have a list of the witnesses to be exadinal York, a period which could not mined against him? Most unquestionably now be considered as very remote: from it was. Under the bill now before the all that he had ever heard of that per- House, one witness was sufficient; no son, who was by every one represented evidence of innocence of intention was as a very meritorious individual, he felt a admissible; no means of defence provided ; much greater disposition to wish him a no guards for innocence secured; no long life, than to wish for his death; and power of inquiry given ; no opportunity yet a man might be tempted to wish for of knowing the witnesses afforded. the latter, when he found a legislature so Upon the point of the list of witnesses, absurd as to continue a cruel distinction he sincerely hoped the chancellor of the between different species of high treason, exchequer had repented of what he had and refuse to individuals accused of one said, in answer to that observation yesterthe indulgencies which it allowed when day. He was the minister of the crown ; they were accused of another, and when it must be by his advice that the law offithere existed no other pretence for the cer of the crown was, in a great measure, distinction, than an absurd apprehension to conduct prosecutions for treasons; and of an invasion from an aged cardinal to that such a person, in such a situation, revive the claims of the house of Stuart. should say that a trick might be played If any person unacquainted with our laws, on the prisoner by sending him a list of our manners, and our customs, should in- witnesses so numerous that he should not quire into the nature of a punishment have time to examine it, by which the which was said to be lenient, he purpose of an act of parliament might be would certainly conceive it to be im- defeated, was a declaration of a most prisonment or pillory almost ; but if he alarming nature to the people of this was informed that death, the ultimate country. All he could say was, he hoped right of civil society on the individual, no such infamous tricks would be atwas still inflicted by this bill, with a less tempted ; but, if there was such an attor. probable chance of escaping than under ney-general in this country, he hoped the former laws of the country, and with there was still spirit enough in the people the trifling exemption from forfeiture and to bring him to a proper account for it. corruption of blood, he might, perhaps, | If there was such a minister belonging to be led to conclude, that this tyranny was the crown, he hoped and trusted there was spirit enough in that House to bring to suppose that he should remain unanhim to account for it. He hoped the swered. What sort of answer he would House would not be reconciled to the re. receive from others he could not take mainder of the bill, because several of its upon him to say; but for himself he would harsh, cruel, and hypocritical lenient assert, that though his answer might be clauses were omitted. On the contrary, the weakest, it should certainly be the emboldened by the success which had at fairest. Infirmity might call for pity; but tended their endeavours, let the House his candour, he trusted, would claim apgo one step further, and reject the bill probation. The right hon. gentleman had altogether. Much more judicious, manly, confined his objections to two points; the and honourable would it have been, if the one dilatory, the other peremptory. And, promoters of this bill had pursued that first, as to the dilatory, or the absence of course ; but possessing minds unacquaint- a certain learned gentleman (Mr. Erskine), ed with, or hostile to the constitution, he regretted, and the House must regret, they had thought it more proper to cherish that the conflicting duties of that learned harsh laws, though they had awkwardly gentleman to that House on the one hand, endeavoured to conceal their real sen- and his clients on the other, should have timents, by expunging clauses introduced prevented him from affording assistance by themselves when the statute would so very material as his was to the present not bear them out, and proceeded on the discussion. A loss of such magnitude, he supposition of criminality where it could said, demanded something by way of com. lend them any assistance. The House fort, and that he would endeavour to afford would likewise consider the manner in them. It must then, in the first place, which the bill had been hurried through comfort the House and the right hon. gen. the House. They were called upon to meet tleman, to reflect that whatever the disin Easter-week, at a time when many gen- cussion lost by the learned gentleman's tlemen were necessarily absent, particu- absence, his clients gained, and he himself larly one honourable and learned friend was proportionably indemnified in his (Mr. Erskine), from whose knowledge profits. Another comfort he offered them and eloquence so much advantage had was, that though the learned gentleman been derived in the commencement of had been so churlish as not to communi. this business, and who would have been cate his rich ideas to his right hon. friend, soon enabled to have resumed his seat in that gentleman did not stand much in the House. The most gross blunders in need of his assistance, either in substantial respect to the reciprocal legislations of eloquence, splendid declamation, viruEngland and Ireland had been committed ; lence, or acrimony; and while the and to facilitate their projects, men had right hon. gentleman was present, he been contented to sacrifice the natural thought the House would hardly be indesire of reputation, arising from their consolable for the loss of his absent knowledge of penal legislation and the friend-though Atlas was gone, Hercules constitution of their country. By the ex- remained to lend his shoulders to the ertions of the gentlemen with whom he falling globe of the constitution. Mr. acted, the bill had been rendered in some Burke ridiculed Mr. Fox's lamentation respects less exceptionable ; and by its for the absence of Mr. Erskine. If howtotal rejection, he hoped that the mildness, ever, he said, the House was to defer its philanthropy, and liberality for which the business till the learned absentee had diseighteenth century had been distinguished, charged his duty to all his clients, it would still remain its characteristics. would find itself in the predicament of the Though from his not being in a committee, peasant of old—“ Expectat rusticus dum he had no opportunity of replying to any defluat amnis." The House, in that case, misrepresentation of his arguments, yet must wait long enough, and, in doing so, he would console himself with reflecting, gratify the right hon. gentleman, who, that he had discharged his duty to his like Fabius, wished to fight all his adver. country in giving the present bill every saries by delay—a particular mode of opposition in his power.
generalship that never was carried to such Mr. Burke rose.
He said that he was a pitch in ancient or modern times as by mot surprised the right hon. gentleman the right hon. gentleman. As to the pewho spoke last should predict a reply to remptory objection, he admitted, that if what he had said, as he must think too there was a subject more serious in its nawell of the House, as well as of himself, ture than any other for the contemplation of parliament, it was that of meddling with which the constitution existed? Was it the laws at all. When the House touched asked, whether it infringed on liberty? He jurisprudence, it should do it with a tender would say, yes, it did. It was a law; and hand; the criminal part still more ten- | laws always infringed in some respect on derly; and the law of treason most of all; natural liberty, as commanding something for they were those in which power might to be done, or something to be avoided. be the most effectually employed to hurt Every law that was made took away somepersons
obnoxious to it; it should, there- thing from the portion of liberty. It was, fore, be watched most carefully: when then, to be considered, whether the prethe constitution was concerned, there sent measure was such as took away more could not be too much caution
than was necessary of that liberty? If There were, Mr. Burke said, but two so, he thought it ought not to pass. And points on which the bill could be consid- next, whether it took away such a liberty dered; one, whether it was conformable to as, if it remained, could do no mischief? law; the other, whether it was consistent In a constitutional view, all acts done with policy; and in considering the matter, by that House were to be considered as the House must throughout take along either peace or war acts. There must be with them, as the grounds of their reason- a peace police, and a war police; the ing and the very foundation of the bill
, latter of which was to secure the blessings that we were at war with France upon its enjoyed in the former, and each different present bottom and system as it related to from the other, the necessities of war the other powers of Europe. The charges calling for an increase of the prerogative of being unconstitutional and hostile to of the crown, in progressive proportion to liberty had been levelled at the bill. These, the difficulties that occurred in it; and this he said, seemed to be the common-place made a part of the body of the common expressions of gentlemen on all occasions: law. If this, then, was the case, the first they were used tdo frequently; but, in thing to be considered was, whether the his opinion, they should not be used so general matter of the bill harmonized with lightly. The whole of the right hon. gen. the general principles of the constitution, tleman's speech on the present occasion and was justified by the example of our resembled more a prize declamation at a ancestors? Convenience, he said, was the university than the substantial arguments ground of all law; and hence the present of a statesman; but, coming from a person bill was consistent with the general prinof abilities so truly respectable-and no ciples of jurisprudence. The juridical man respected the right hon. gentleman's power of punishing as traitors those who talents more than he did they required aided and comforted the king's enemies, attention. Our constitution, Mr. Burke could be traced to Edward 3d, and, if nesaid, was a provident system, formed of cessary, even farther. Aiding in the strict several bodies, for securing the rights, the legal sense of the word, was assisting and liberties, the persons and the properties of comforting, was making stronger; and the people. The constitution was com- the present act went exactly to that object, posed of the King, Lords, and Commons; following the principles of the law of the and in the judicial power, the King was 25th of Edward 3d and only drew out into represented by the judges, the Lords by adetail of specific acts the generality of that the writ of error, and the Commons of statute. And though the provision of that England by the juries. Now let us, said law went in general terms, to make aiding he, get out of the torrent of declamation, and comforting the king's enemies treason, and see what part of this constitution is yet it directed the king, by the advice of touched or affected by the present bill. his judges, to specify those particular
Is the King's prerogative touched? Are things which were to be considered as the Lords touched by it in their legislative overt acts; and he hoped it would be or judicial capacity? Are the Commons considered as no disparagement of the touched by it? Are the judges or juries gentlemen of the present day to say, touched by it? No-none of these: the that those of that time were as comconstitution remains sacred and inviolate: petent to judge. Lord Coke said, that and the whole torrent of declamation on the law was as well understood then as the subject, ad captandum vulgus, melts it ever was since; and though the fashioninto air.
able jargon now was, that those of the The question, then, was, did the bill present day had got all the wisdom in the touch those things for the protection of world to themselves, there were as great (VOL. XXX. ]
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