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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 cases of felony, the specific act or crime was set forth in the warrant of commitment; and therefore the party had not the same occasion for a copy of the indictment. As to the aid of counsel, it was not denied in prosecutions even for felony; for as often as a question of law arose, the prisoner was allowed to be heard upon it by his counsel. Were counsel to be allowed to speak on matters of fact in trials of felony, and were copies of indictments granted ten days before trial, it would be absolutely impracticable to execute the criminal law of the country. With respect to the granting the accused a list of the witnesses in all cases, it would be of little use to him, as a list of such a cloud of witnesses might be sent to him, as would render it impossible for him, with all the assiduity of his friends, to inquire into their characters in the space of ten days.

Mr. Fox said, he was well aware that in cases of felony, the accused had a right to be heard by his counsel on questions of law; but it was on such questions only that the advice of counsel might be necessary; and therefore the right hon gentleman had misunderstood him if he fancied he did not contend for the extension of the indulgence to every point which might enable a counsel to defend his client with effect. As to what the right hon. gentleman had said about furnishing the accused with a list of a cloud of witnesses, he was absolutely astonished that aminister of the crown should suggest even the possibility of a public accuser swelling the number of witnesses, for no other purpose than that of baffling the law, by putting it out of the power of the prisoner to avail himself of the advantage which it was the intention of the legislature that he should enjoy in its fullest extent.

The House at last divided on Mr. Adam's motion: Yeas, 32; Noes, 110.

April 9. The bill was read a third time. On the question that the bill do pass,

Mr. Curwen said, that nothing had occurred in the progress of the bill, which could induce him to alter the opinion he had at first formed, that its principles were contrary to the just and true principles both of criminal law and of sound policy.

to the several clauses in their order, and adverted particularly to that part of the first clause which makes intention criminal, although it should not be followed up by any act-to the monstrous partiality exhibited in the same clause, by which a man might enter into the most extensive contract for sending woollen cloth to France but if he should happen to wrap up along with any parcel of it only a dozen pair of shoes, he would be liable to be tried and executed for treason-and the danger of depriving persons tried for treasons under this act of the benefits given by the acts of king William and queen Anne. He conceived the bill to be totally unnecessary; and only intended to continue the alarm which had been raised.

Mr. Courtenay reprobated the bill in the most severe terms, and said, that the grossest deception had been made use of with respect to the clothiers in this country, who were placed in a most dangerous situation, if, by sending woollen cloth to France, they should be guilty of treason under the 25th Edw. 3d.

Mr. For said, that as in every stage of this bill he had entered his protest against it, he should conceive himself wanting in his duty to himself and to his constituents, if he now suffered it to pass in silence. He therefore was ready to declare, that in the course of his parliamentary life he had never seen a bill so unfounded in policy, and which was contrived so effectually to violate every principle of justice, humanity, and the constitution, as the one in question. The right hon. the chancellor of the exchequer had, in defending it, confounded two things, in their nature the most distinct, the principle and the pretext of the bill. He had said, that the principle must be unobjectionable, because it was to prevent supplies of military stores and other necessaries from being carried to the enemy: but this was the pretext for bringing in the bill, not the principle on which it was founded. The bill was much better calculated for entrapping individuals, than for guarding them against the perils of high treason.

Mr. Fox said, it would be discovered that they who opposed the bill were, in truth, the sole persons who endeavoured to thwart the designs of our adversaries, while its supporters were giving every ad

vantage to our foreign foes. But on the grounds of its impolicy he did not now mean to argue. He recurred to the principles of justice and humanity, which were superior to all policy, and on which alone true policy could rest. In the introduction of this bill, it had been said, that part of it was declaratory of the old law, and part of it contained new enactments. But, we were now told, that all of it was both declaratory and new; and by this sophistical quibbling, the understanding was confounded, and gentlemen were at a loss what opinion to form, or upon what ground to proceed.

The first clause was merely declaratory. It did not abrogate the statute of the 25th Edward 3d. It did not make that not to be treason, which before was treason, under pretence of defining the law of treason; it served as a snare to entrap the unwary and inconsiderate. It would have been more proper, more candid, and more just, openly and specifically to have stated, whether sending cloth to France was or was not treason. This might easily have been done by an express clause for the purpose; whereas, according to the present existing law, if the bill should pass, these clothiers would still be liable to the penalties of the old law, without the possibility of their knowing whether they were guilty or not, and at the same time rendered obnoxious to a severer punishment than that which the present bill inflicted. He would not repeat the arguments he had formerly adduced against the first clause of the bill. By the wording of it, however, he could not help again observing, that the mere agreement to commit an offence, and the offence itself were put upon the same footing, and liable to the same consequences. Inchoate crimes were classed in the same degree of enormity with those which were completed; and, by this confusion, every rational doctrine of criminal jurisprudence destroyed. Although a verbal agreement for a lease of above three years, and for a sale of goods above the value of ten pounds, was declared ab solutely void by the statute of the 29th Charles 2d, because of the ease with which perjury in these cases might be committed, yet this bill wantonly exposed the life of an individual in cases where perjury might be perpetrated with equal facility. The former wise statute would not permit the fortune of a man to be injured by such means; the present bloody bill

exposed his life to destruction in similar circumstances. This was, indeed, a sanguinary part of the clause; and late as the stage of this bill was, he trusted the House would still recede from it, covered with shame and confusion for having entertained it so long.

There was another clause in it, which was also sanguinary, but which was, if possible, more absurd than sanguinary; it was that which made it death in an Englishman-to do what? To return to his native country! An Englishman might go to Ireland, and there agree, without guilt, for the purchase of an estate in France; he might go to Hamburgh, and there make a like agreement, and that would be only an inchoate crime: he might pay the purchase money, and by his attorney take possession of the estate; all this would not amount to high treason; but should he after this return to his native land, this return would consummate his guilt, and bring upon him the penalties of treason. Some gentlemen might think such a clause as this without a precedent; but in fact, it was not; it was stolen from the National Convention, where the most arbitrary laws were enacted for ascertaining who should be deemed emigrants, and which afterwards devoted them to death, if they should presume ever to return to their native country.

In the discussion which had taken place last night, it had been asserted, that no act was tyrannical which tended to bring the guilty to a certain and speedy conviction; but, was not the acquittal of innocence, as well as the punishment of guilt, an essential object in every humane code of criminal law? Why, therefore, were persons, who were indicted under this act, to be deprived of the benefits of the statutes of William and Anne? By these acts, a copy of the indictment was to be granted to the prisoner; counsel were permitted to plead for him on questions of fact, as well as questions of law, and what was, perhaps, of more importance, were allowed free communication with him at all times. To these important privileges were superadded that of having a list of the jury who were to try the pri soners, and of the witnesses who were to be adduced against him. A reason had indeed been assigned by the right hon. the chancellor of the exchequer, for withholding this privilege in the present instance, which he confessed he was sorry, as well as ashamed, to hear assigned.

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He could not help again taking notice of the severity of the bill, in submitting all persons to be tried, without the assistance of a gentleman of the learned profession to address the jury for them. He must say, that allowing counsel to speak for them appeared to him an important point. It had, indeed, been said, that this bill was founded upon the general principle of the laws of treason, and on the 25th of Edw. 3d. That was only a pretext as he had said before. Was the fact so? Not the least like it. Was it no advantage to a poor man in prison, accused of high treason, to have a counsel to visit and attend him, and to assist him in making out his defence? Was it of no advantage to a person thus accused, to have a list of his jury before his trial for perusal? Was it of no advantage to a person so accused to have a copy of his indictment several days previous to his being called upon to appear upon his trial? Was it no advantage for such a person to have a list of the witnesses to be examined against him? Most unquestionably it was. Under the bill now before the House, one witness was sufficient; no evidence of innocence of intention was admissible; no means of defence provided; no guards for innocence secured; no power of inquiry given; no opportunity of knowing the witnesses afforded.

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 prisoner could not possibly inquire into their situation, or have an opportunity of knowing who were really to be produced against him. If such an artifice was ever made use of, either by the right hon. gentleman, or the other servants of the crown, he trusted there was still virtue enough in the House, and spirit enough in the nation, to call them to a severe account for such notorious misconduct. But, amidst all the severe enactments with which this bill was filled, they were still said to be null, because the operation of the laws of forfeiture was prevented from attaching upon the persons who might offend within this bill. He lamented, in pathetic terms, that because this bill was not to work corruption of blood, a person accused of a breach of it was to be deprived of the aids and shields which were allowed by the 7th of William 3d. to persons accused of high treason; the distinction of treasons working and not working corruption of blood, was to cease at the death of cardinal York, a period which could not now be considered as very remote: from all that he had ever heard of that person, who was by every one represented as a very meritorious individual, he felt a much greater disposition to wish him a long life, than to wish for his death; and yet a man might be tempted to wish for the latter, when he found a legislature so absurd as to continue a cruel distinction between different species of high treason, and refuse to individuals accused of one the indulgencies which it allowed when they were accused of another, and when there existed no other pretence for the distinction, than an absurd apprehension of an invasion from an aged cardinal to revive the claims of the house of Stuart. If any person unacquainted with our laws, our manners, and our customs, should inquire into the nature of a punishment which was said to be lenient, he would certainly conceive it to be imprisonment or pillory almost; but if he was informed that death, the ultimate right of civil society on the individual, was still inflicted by this bill, with a less probable chance of escaping than under the former laws of the country, and with the trifling exemption from forfeiture and corruption of blood, he might, perhaps, be led to conclude, that this tyranny was

Upon the point of the list of witnesses, he sincerely hoped the chancellor of the exchequer had repented of what he had said, in answer to that observation yesterday. He was the minister of the crown; it must be by his advice that the law officer of the crown was, in a great measure, to conduct prosecutions for treasons; and that such a person, in such a situation, should say that a trick might be played on the prisoner by sending him a list of witnesses so numerous that he should not have time to examine it, by which the purpose of an act of parliament might be defeated, was a declaration of a most alarming nature to the people of this country. All he could say was, he hoped no such infamous tricks would be attempted; but, if there was such an attorney-general in this country, he hoped there was still spirit enough in the people to bring him to a proper account for it. If there was such a minister belonging to the crown, he hoped and trusted there

was spirit enough in that House to bring him to account for it. He hoped the House would not be reconciled to the remainder of the bill, because several of its harsh, cruel, and hypocritical lenient clauses were omitted. On the contrary, emboldened by the success which had attended their endeavours, let the House go one step further, and reject the bill altogether. Much more judicious, manly, and honourable would it have been, if the promoters of this bill had pursued that course; but possessing minds unacquainted with, or hostile to the constitution, they had thought it more proper to cherish harsh laws, though they had awkwardly endeavoured to conceal their real sentiments, by expunging clauses introduced by themselves when the statute would not bear them out, and proceeded on the supposition of criminality where it could lend them any assistance. The House would likewise consider the manner in which the bill had been hurried through the House. They were called upon to meet in Easter-week, at a time when many gentlemen were necessarily absent, particularly one honourable and learned friend (Mr. Erskine), from whose knowledge and eloquence so much advantage had been derived in the commencement of this business, and who would have been soon enabled to have resumed his seat in the House. The most gross blunders in respect to the reciprocal legislations of England and Ireland had been committed; and to facilitate their projects, men had been contented to sacrifice the natural desire of reputation, arising from their knowledge of penal legislation and the constitution of their country. By the exertions of the gentlemen with whom he acted, the bill had been rendered in some respects less exceptionable; and by its total rejection, he hoped that the mildness, philanthropy, and liberality for which the eighteenth century had been distinguished, would still remain its characteristics. Though from his not being in a committee, he had no opportunity of replying to any misrepresentation of his arguments, yet he would console himself with reflecting, that he had discharged his duty to his country in giving the present bill every opposition in his power.

Mr. Burke rose. He said that he was not surprised the right hon. gentleman who spoke last should predict a reply to what he had said, as he must think too well of the House, as well as of himself,

to suppose that he should remain unanswered. What sort of answer he would receive from others he could not take upon him to say; but for himself he would assert, that though his answer might be the weakest, it should certainly be the fairest. Infirmity might call for pity; but his candour, he trusted, would claim approbation. The right hon. gentleman had confined his objections to two points; the one dilatory, the other peremptory. And, first, as to the dilatory, or the absence of a certain learned gentleman (Mr. Erskine), he regretted, and the House must regret, that the conflicting duties of that learned gentleman to that House on the one hand, and his clients on the other, should have prevented him from affording assistance so very material as his was to the present discussion. A loss of such magnitude, he said, demanded something by way of comfort, and that he would endeavour to afford them. It must then, in the first place, comfort the House and the right hon. gen. tleman, to reflect that whatever the discussion lost by the learned gentleman's absence, his clients gained, and he himself was proportionably indemnified in his profits. Another comfort he offered them was, that though the learned gentleman had been so churlish as not to communicate his rich ideas to his right hon. friend, that gentleman did not stand much in need of his assistance, either in substantial eloquence, splendid declamation, virulence, or acrimony; and while the right hon. gentleman was present, he thought the House would hardly be inconsolable for the loss of his absent friend-though Atlas was gone, Hercules remained to lend his shoulders to the falling globe of the constitution. Mr. Burke ridiculed Mr. Fox's lamentation for the absence of Mr. Erskine. If however, he said, the House was to defer its business till the learned absentee had discharged his duty to all his clients, it would find itself in the predicament of the peasant of old-" Expectat rusticus dum defluat amnis." The House, in that case, must wait long enough, and, in doing so, gratify the right hon. gentleman, who, like Fabius, wished to fight all his adversaries by delay-a particular mode of generalship that never was carried to such a pitch in ancient or modern times as by the right hon. gentleman. As to the peremptory objection, he admitted, that if there was a subject more serious in its nature than any other for the contemplation

of parliament, it was that of meddling with the laws at all. When the House touched jurisprudence, it should do it with a tender hand; the criminal part still more tenderly; and the law of treason most of all; for they were those in which power might be the most effectually employed to hurt persons obnoxious to it; it should, therefore, be watched most carefully: when the constitution was concerned, there could not be too much caution

There were, Mr. Burke said, but two points on which the bill could be considdered; one, whether it was conformable to law; the other, whether it was consistent with policy; and in considering the matter, the House must throughout take along with them, as the grounds of their reasoning and the very foundation of the bill, that we were at war with France upon its present bottom and system as it related to the other powers of Europe. The charges of being unconstitutional and hostile to liberty had been levelled at the bill. These, he said, seemed to be the common-place expressions of gentlemen on all occasions: they were used too frequently; but, in his opinion, they should not be used so lightly. The whole of the right hon. gentleman's speech on the present occasion resembled more a prize declamation at a university than the substantial arguments of a statesman; but, coming from a person of abilities so truly respectable-and no man respected the right hon. gentleman's talents more than he did they required attention. Our constitution, Mr. Burke said, was a provident system, formed of several bodies, for securing the rights, the liberties, the persons and the properties of the people. The constitution was composed of the King, Lords, and Commons; and in the judicial power, the King was represented by the judges, the Lords by the writ of error, and the Commons of England by the juries. Now let us, said he, get out of the torrent of declamation, and see what part of this constitution is touched or affected by the present bill. Is the King's prerogative touched? Are the Lords touched by it in their legislative or judicial capacity? Are the Commons touched by it? Are the judges or juries touched by it? No-none of these: the constitution remains sacred and inviolate: and the whole torrent of declamation on the subject, ad captandum vulgus, melts into air.

The question, then, was, did the bill touch those things for the protection of [VOL. XXX. ]

which the constitution existed? Was it asked, whether it infringed on liberty? He would say, yes, it did. It was a law; and laws always infringed in some respect on natural liberty, as commanding something to be done, or something to be avoided. Every law that was made took away something from the portion of liberty. It was, then, to be considered, whether the present measure was such as took away more than was necessary of that liberty? If so, he thought it ought not to pass. And next, whether it took away such a liberty as, if it remained, could do no mischief?

In a constitutional view, all acts done by that House were to be considered as either peace or war acts. There must be a peace police, and a war police; the latter of which was to secure the blessings enjoyed in the former, and each different from the other, the necessities of war calling for an increase of the prerogative of the crown, in progressive proportion to the difficulties that occurred in it; and this made a part of the body of the common law. If this, then, was the case, the first thing to be considered was, whether the general matter of the bill harmonized with the general principles of the constitution, and was justified by the example of our ancestors? Convenience, he said, was the ground of all law; and hence the present bill was consistent with the general principles of jurisprudence. The juridical power of punishing as traitors those who aided and comforted the king's enemies, could be traced to Edward 3d, and, if necessary, even farther. Aiding in the strict legal sense of the word, was assisting and comforting, was making stronger; and the present act went exactly to that object, following the principles of the law of the 25th of Edward 3d and only drew out into a detail of specific acts the generality of that statute. And though the provision of that law went in general terms, to make aiding and comforting the king's enemies treason, yet it directed the king, by the advice of his judges, to specify those particular things which were to be considered as overt acts; and he hoped it would be considered as no disparagement of the gentlemen of the present day to say, that those of that time were as competent to judge. Lord Coke said, that the law was as well understood then as it ever was since; and though the fashionable jargon now was, that those of the present day had got all the wisdom in the world to themselves, there were as great

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