The History of England, from the Accession of James the Second - Volume 5 by Thomas Babington Macaulay (i can read book club TXT) 📕

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