The History of England, from the Accession of James II — Volume 5. Томас Бабингтон Маколей
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.
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