The History of England from the Accession of James II, Vol. 5

T >> Thomas Babington Macaulay >> The History of England from the Accession of James II, Vol. 5

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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.

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