§ On the motion of sir Samuel Romilly, the House resolved into a committee upon the Bill to take away Corruption of Blood in the punishment of felony or treason.
Mr. Yorkeenforced his former objections to the general principle upon which this measure was grounded, involving as it did an alteration in the old established law of the country. As the principle was admitted, that we should in no case legislate de novo without necessity, so the strongest grounds of necessity should be adduced to warrant legislation against an established system; and he saw no grounds for the very material change which the Bill proposed. To that part of it which related to lower felonies, his objections were not so strong, although he could not help considering the change as disadvantageous. But to the removal of the Corruption of Blood from the punishment of treason and murder, he strongly objected. It was to be recollected, that this punishment was as ancient as the law of England—as any of those laws which established the security of property—as ancient as the law which settles the succession of the father's estate upon the eldest son—as other laws, which no rational man could wish to alter. But independently of the long establishment of this law, which entitled it to respectful consideration, he contended, that its policy and expediency were unquestionable, because it provided for the safety of society, by providing for the punishment of the greatest crimes by which society could be attacked. The value and importance of this part of our law was indeed established by the high authority of lord Coke, from whom the right hon. gentleman read a long extract, in support of his opinion. The right hon. gent. said, he would ask, was there any reason for the alteration of this part of our law, which was not a technical formality, but a substantial and constitutional feature in it? Had any inconvenience arisen from the practice of the law as it now stood? On the contrary, would it not be a slur on his present Majesty's reign, marked throughout by the mildness with which the laws, particularly those
†528 relating to high treason, had been administered, to repeal this statute at the present time, as if any unjust use had been made of it? In the period of this reign the minds of men had been shocked, alarmed, and, as it were, set adrift by three dreadful events which had threatened the disorganization of society in general, and the destruction of this country in particular; the rebellion of America, the French revolution, and, lastly, the rebellion in Ireland. Was it immediately after events like these, and with all their horrors still staring us in the face, that any prudent man would propose to make alterations in the laws relating to high treason, or to diminish the terrors of the punishment? Again, when we recollected the many atrocious and barbarous murders lately committed in the metropolis, and unexampled in any former period, could we consider ourselves as entering upon a new golden age, or as living here in Arcadia? From the many evils with which we were threatened from our superabundant population and other fearful causes, we ought to hesitate extremely before we admitted any considerable relaxation in the sanction of the law, or loosed the hold on the actions of others, which, as all writers agreed, the principle of regard for their posterity, whether vanity or a better feeling, gave us over them. The hon. gentleman concluded with stating, that he should propose to leave out of the Bill the words, "or treason," and that it should run thus, "that no attainder of felony, not extending to treason, petty treason, or murder, do lead to corruption of blood."
§ Sir James Mackintoshsaid, it was with unfeigned regret that he was compelled to dissent from the reasoning of the right hon. gentleman who had last spoken. It was true, he admitted with him the antiquity of the present law; it was as ancient as any other of our laws relating to high treason; but it was not more ancient than the law enacting the infliction of the peine forte & dure; it was not more ancient than the statute, de heretico comburendo; it was not more ancient than the sentence for burning women convicted of petit treason, nor was it more ancient than any other of those disgraceful and oppressive statutes which formed the whole of the feudal system. It was asked, what necessity there was for altering the law in this respect? He would answer, the same necessity that there was for repealing the law for the infliction of torture, for the burning of women, 529 of the burning of heretics—the necessity that in a humane and enlightened age and country the laws should not be sullied, the heart hardened, and the understanding insolied, with barbarous and absurd enactments—a necessity the loudest, the most imperious, and the most indisputable of all others. The spirit of mildness and humanity which had characterized the administration of justice in the present reign he was not certainly disposed to deny. But what was the inference drawn from it by the hon. gentleman? Why, that they were not to catch any part of that spirit, that they were not to embody the same views and principles in any legislative measure; but to leave the code of English jurisprudence branded and stained as it was with barbarous and obsolete anomalies. On a subject so trite as that of the laws of confiscating property, and on which so much ability had been displayed in that House, he could have been contented not to have offered any arguments, but to have given a silent vote; but he wished to make a few observations on this part of the subject, both as a native of Scotland himself, and as the representative of a respectable body of Scottish freeholders. The majority of those who heard him were not to be informed, that the punishment of corruption of blood was unknown to the ancient law of Scotland, as well as of every other country of Europe. This punishment was first extended to Scotland by the 6th of queen Anne, in cases of high treason; but the corruption of blood for felony had never been introduced into Scotland; and indeed he (sir James), though not a Scotch lawyer, believed that the term felony' itself did not exist in their law. And here he would beg to call the attention of the House shortly to the circumstances under which the 6th of queen Anne had been passed, as they were related by that very correct and honest historian (for such he appeared to him), bishop Burnet. After the law was passed, a proviso was brought in, that it was to end on the death of the Pretender. In consequence of this proviso, the opposition which had been made to extending it to Scotland ceased. But it only ceased in consequence of the addition of this clause, which therefore partook of the sacredness of that whole arrangement. We were informed by bishop Burnet, that when he wished to propose the repeal of the confiscating laws in 1716, he was told that such a repeal 530 would be proper in good times, but that circumstances then rendered them necessary: and by whom was he told so? By lord Somers and lord Cowper, who were at that time the lights and ornaments of their country. The circumstance which in their minds must have weighed against the immediate repeal of these laws was the French invasion of Scotland the preceding year (1715) in favour of the Pretender; so that it appeared to them, who were the framers and supporters of this very Bill, that any extension of it beyond a period of imminent danger and alarm was a violation of the principle on which it was brought in. In 1745, half a century after its first introduction, lord Hardwicke had made a declaration to the same effect, when he restricted the necessity of the continuance of the Bill to the Pretender's life-time: and it appeared from the debates of that period (lately published),* as well as from the preamble of the Bill itself, that it was only intended to meet the pressure of circumstances, and was regarded as a rigorous and violent measure, unworthy of "good times." From the year 1709 to the yew 1799 he stood on the authority of the greatest lawyers and statesmen that this country had produced, that the Bill was to be considered as a temporary and accidental expedient, and not as a necessary and fundamental part of the law of the land; and that the making it general and unconditional in 1799 was the real innovation; for, that is an innovation which alters the existing law. That innovation, however, had been, introduced in times of danger, and discord, and civil war; and did not therefore afford any precedent or any apology for its continuance in the present circumstances. It had been asked, why his learned and hon. friend had not extended his proposed alteration of the law to forfeiture, as well as corruption of blood. Indeed, it had been objected to his learned and hon. friend generally, that he was too much a reformer in detail, too minute, and cautious, and fearful. He thought that this objection was in itself a singular one; and besides, with respect to the particular instance, there was this, difference between the law of forfeiture and the corruption of blood, that the former was common to us with other countries; but the latter peculiar to ourselves, and was therefore proved by general experience not to be essential to the secu-
* See Parl. History, Vol. 13, p. 704.531 rity and preservation of a state. For himself, he held both in equal (he would not say disapprobation, but) abhorrence. With respect to the corruption of blood, he would say, that if any Anti-Utopian philosopher were to sit down to contrive a law which was to realize, not the greatest possible good, but the greatest aggravation of folly and injustice, he could not invent any thing more preposterous than the present law on that subject. For it was a law, not to inflict a direct and heavy punishment on the offender, and a remote and contingent one on his posterity, but to inflict very often a serious and certain punishment on the innocent, and either a very slight one or none at all on the guilty. To suppose that a law, like that under the consideration of the committee, would have the effect of deterring a man from the commission of a crime; to imagine that this law, through which a person unborn might; some fifty or a hundred years after the criminal's decease, miss an estate which he might otherwise have gained, was to entertain an expectation more wild and extravagant than had ever been dreamt by the wildest sophists while forming schemes of government. No stronger case was necessary to shew the impropriety of continuing this law than one which an hon. and teamed gentleman (Mr. Plunkett) had brought forward; where, through corruption of blood, an estate was lost to the children of an officer in his Majesty's army, who had been engaged in suppressing the rebellion, in which his relation was concerned. This hardship had been endured, to maintain the beautiful theory, that the corrupted blood of a traitor could not be a channel for the transmission of any property. For this, the children of an officer who had devoted his life to the cause of loyalty were to be made beggars; as if it were not enough that their unfortunate parent should draw his sword against his kinsman, and probably be placed in the distressing situation of unconsciously depriving his relation of life. Could it be thought that it was no hardship for the children of such an officer to go on their knees to beg that bread, which, but for this law, they might have claimed as their right. He did not wish to asperse those through whom the bounty of the crown was exerted; but he should despise that man who did not feel it a degradation to be compelled to implore that bounty. To be placed in this situation, was revolting 532 to the pride of an Englishman—to those feelings which had made this country what it now is, and what, he trusted in God, it would ever remain. The limitations which had been set to the operation of this law, proved that it had been considered as an innovation on the established system. It had been condemned by lord Somers in 1708, by lord Hardwicke in 1744; and a time more favourable for its repeal than the present, could never be expected to arrive. At a period when, as had truly been said, all were united in gratitude to Almighty God for those stupendous events which had assured our safety and repose, it would be well that they should proceed to abrogate the ancient severity of those laws which might be relaxed—to remove the brand and remnant of civil convulsion—to do away that miserable absurdity, which only served to furnish a subject for invective and criticism to those who opened our statute book in order to abuse it. He concluded, by pronouncing an animated eology on the conduct of the emperor Alexander; and expressing a hope, that the happy change effected through his firmness, would be productive of important domestic reforms, affording as it did the fairest opportunity for attaining them.
§ The Solicitor General (Mr. Serjeant Shepherd)began by denying the assumption of the last speaker, that the proceedings of the legislature in 1799, with respect to the corruption of blood, was an innovation; and contended, that it was rather a restoration of the law as it existed previously to 1708. Admitting also that the account of the learned and eloquent member was accurate, so far as it regarded the application of the law to Scotland, it by no means followed, that the eminent authorities he had cited, who condemned the corruption of blood as extending to that country, condemned it also as applying to England; for if they did, it was very singular, that in the reign of George 2, they should have extended its term of operation. But, it had been said, this was done because the same reason when existed for it as in 1708; viz. that it should continue in force as long as the descendants of the Pretender were living; it was marvelous, however, if all this were correct, that in 1799, when the last descendant of the Pretender was dead,* no one found out that the principle of the law was an
* The learned member seems not to have been historically correct in this part533 innovation. In fact, it was no innovation; it had been a compromise between the parties in the reign of queen Anne; and it was fit that it should be restored to its ancient form when the reasons for that compromise no longer subsisted. He thought the antiquity of a law was a strong argument why any proposed alteration of it should be well and maturely considered. The general law of corruption of blood had been recognized time after time by a variety of acts of parliament, wherein new felonies had been created, and from which the penalty of corruption of blood had been expressly excepted; thus confirming it as effectually, and almost with equal force, as if re-enacted. He hoped the House would pause, therefore, before they consented to any alteration of a punishment which was founded in the principle of common law, was recognized by Magna Charta, and over and over again by repeated acts of parliament. Corruption of blood, as far as it related to treason, he was decidedly of opinion, ought not to be taken away, because its operation upon the affections and sympathies of men was such as might have the effect of deterring them from the commission of enormous and desperate crimes; and though he should prefer that the obligations of moral duty might alone be sufficient to curb the licentiousness of vice; yet, as they well knew that such obligations were not always effective, he, for one, felt no objection in making the best affections of our nature controul its worst passions. It was well in the hon. and learned gentleman to quote the case relative to the officer's family: but would it be wise in the House to allow general measures to be altered, because particular cases of hardship were to be found? This must be the more felt, when, in cases like that referred to, the crown had always, in modern times, interfered to do the sufferers justice. But the learned gentleman wished he law of forfeiture, as well as that of corruption of blood, to be done away. He (Mr. Solicitor Gen.) wished to know at once, to what length be would propose to go, that he might see how far he meant to change the present system. It appeared to him, that corruption of blood, as founded on the common law, and acted upon in modern times, ought to continue. The crown of late years had not inter-of his argument; as cardinal York did not die before 1807.534 fered, but to benefit the family of the criminal, and to save them from that danger to which they had been left exposed but for the existence of this very law. He wished it therefore to continue over the criminal in terrorem, and to protect in particular cases his family by escheat.
§ Sir S. Romillyacknowledged, that he felt at the same time great concern and great satisfaction. He was sorry, from the speech of his hon. and learned friend, to find that he was to have him as an opponent in the present measure; but the liberal, candid, and moderate manner in which he had exhibited that opposition, though it was no more than what from the habitual suavity and amenity of his hon. and learned friend, he might have expected, could not but give him the highest satisfaction. He had hoped, however, that his hon. and learned friend would have given his reasons much more at large, why it was his wish, or why he thought it necessary, to retain this punishment. He could not but he surprised that his hon. and learned friend, or any other person, could be desirous to retain a practice which was a disgrace to our laws; while at the same time it was in reality no punishment whatever, if the criminal chose to make a will before he was found guilty. He was sorry that he could not coincide in opinion with the hon. gentleman; because, though convinced that high treason was an offence of greater enormity that murder, and ought to be more severely punished; yet, he was equally convinced that corruption of blood was unfit for any punishment. In the first place, it fell upon the innocent, and not upon the guilty; and in the next place, it depended upon the will of an individual, whether it should have any operation or not. If a person died intestate, and the heir could not make out his pedigree, but through the blood of one tainted with felony, then the law would take its course; but if the estate or property was devised, there existed no power in the law to prevent its transmission. And was that fit for a punishment? If this, however, was the law of the land, why did not his hon. friend bring in a Bill to make it general? It was not so at present. Corruption of blood was not known in any part of the county of Kent. Were murders to be indulged and tolerated there as a privilege? And that was an argument against the antiquity of the law; for the ancient law of the land was the law of the county 535 of Kent, viz. the law of gavel kind. What signified, however, the antiquity of a law? The question to be considered was, whether it was fit for its purpose, whether it was adapted to the existing state of manners and society, and not whether it was enacted by one set of barbarians or another. Mr. Justice Blackstone had disapproved of it. In the last chapter of his Commentaries, when speaking of the advantages which had flowed from the Revolution, among others he had mentioned this, "that it opened a prospect, that corruption of blood would be entirely done away by one general and undistinguishing law." He enlarged on the cruelty and injustice of this statute; he had no wish to change the general system of the criminal laws; but where he thought they might be altered for the better, he should continue to offer those suggestions which he thought would be of service. No time could be fitter for working such reforms than the present. Europe had long enough given her attention to scenes of carnage and desolation. A bright prospect now opened before her. It had been said, by the greatest poet, perhaps, of which this or any other country could boast, that
—PeaceHas victories not less renown'd than war;and at many such triumphs he hoped to be present in that House. There it was his hope that victories would be gained, for which shouts of exultation would ascend to Heaven, uninterrupted by the groans of the dying, and the lamentations over the dead. Among writers on the subject in other countries, he had met with only one who said any thing in favour of the doctrine. It was a French gentleman of the name of Tournelle, who was allowed to be not only a man of learning in his profession, but of very extensive acquirements in general literature. The mode in which he put it was, he believed, as follows:—"Il faut percer le cœur du pere par le sein du fils;" which was more of the nature of a dictum of his own fancy, than partaking of any sound principle of reason or argument. The learned gentleman had said, the power of the crown had not been harshly exercised in modern times. In one instance he (sir Samuel Romilly) thought it had, in the case which he had mentioned when bringing the subject forward, and which he would now repeat. He then re-stated the case of a woman of the name of Elizabeth 536 Wisdom, who had been found guilty of murder at Oxford, in the year 1747. An estate, to which she many years afterwards became entitled, (for she had by some means obtained her pardon) had been purchased by a gentleman (a Mr. North) for a valuable consideration, and had been held by him as such bonâ fide purchase. Within a short time, the son of this woman claimed the estate; and the conviction for murder, and consequent corruption of blood, was pleaded in bar of the claim: on which the woman, who is still living, though at a very advanced age, turned informer, and apprised the government of the right of escheat. Government had proceeded at law to recover it, and most expensive proceedings were now heaped upon the man who had given a fair and valuable price for it.
§ The Solicitor Generalsaid, that Mr. North, the person who purchased the estate in the case mentioned by his learned friend, had done so, with a perfect knowledge of the title possessed by the party with whom he made the bargain. The son of the woman, he believed, committed the murder; and the woman herself had some claim on the estate, of which Mr. North had full knowledge at the time he made the purchase. When she stated her claim, it was set up, in opposition to her, by the purchaser, that she could not prosecute it, in a court of justice, as the estate had been forfeited by the commission of the crime of murder. The crown, in consequence, interfered, and claimed the property, as an, escheat, to prevent it from being withheld from the descendants of the woman. This was an act, not of oppression, but of justice.
§ Sir S. Romillysaid, he believed his learned friend had been misinformed. The woman herself, not her son, had been convicted of murder; and, on the other points, his statement appealed to be equally incorrect. This he (sir S. Romilly) could positively assert, that not one of the circumstances mentioned by his learned friend appeared in the progress of the case—they were kept profoundly secret. Of this he could speak, as a witness of the proceedings. The estate had passed through a variety of bands since the year 1747, without any claim whatever having been advanced.
§ Sir James Mackintoshsaid, that it was of little consequence which of the statements was the correct one; either way the inference was decidedly against the prince- 537 ple which the learned gentleman (the Solicitor General) supported. It certainly varied the person by whom the abuse was practised; bat still it shewed, that it was a principle which was employed abusively or fraudulently by one party or the other, either by the purchaser or the woman, and was, therefore, liable to misapplication on future occasions. It also proved, that unless the property, in a case of forfeiture, became an escheat of the crown, there was no remedy whatever. This doctrine, of the corruption of blood, was founded, it was said, on ancient and modern authority. The ancient authority was pointed out in the following passage in a letter from Cicero to Brutus—"Nec vero me fugit quam sit acerbum parentum seelera filiorum pœnis lui; sed hoc præclarè legibus comparatum est, ut caritas liberorum amiciores parentes reipublicæ redderet." With respect to this authority, however, it was to be observed, that the most learned writers and critics declared the letter, from which it was extracted, to be spurious and surreptitious. The modern authority was, Mr. Yorke's Considerations on the Law of Forfeiture, which was opposed by no less a lawyer than judge Blackstone.
§ Mr. Prestonpointed out various hardships that arose from the corruption of blood. Among these he particularly dwelt upon the circumstance, that children born before corruption of blood was taken away by pardon could not inherit from their father, while those who were born afterwards could.
§ Mr. Lockhartsupported the amendment. The argument of the right hon. gentleman (Mr. Yorke), founded on the antiquity of the law, so far back as the Norman conquest, remained untouched. It had been asked, why had the writ De Comburendo Hæeretico, and the punishment 'Peine forte et dure' been done away? But the corruption of blood was very different. This, however, was the only answer the right hon. gentleman had received, respect the case of the woman convicted of murder at Oxford in 1747, which was one of those miraculous occurrences that could very seldom happen. Part of the argument of those who supported the Bill, he conceived to be just. He did net think that the midnight assassin would be prevented from committing murder, through the fear that his family would suffer. But, with respect to high treason, he thought such a result was to be expected. Would not men of 538 high minds, strong passions, and of lofty ambition, be deterred from embarking in treasonable schemes, when they reflected on the ignominy which it would stamp on their descendants—when they considered the flatrée, as the French termed it, by which it would mark their posterity? To men of this description it would act as a preventive of the crime; it would incite them to pause before they committed it. But he did not think corruption of blood should be visited on minor offences—and such was the opinion of Mr. Justice Blackstone, who, in speaking on the penalties of high treason being extended to coining, observes—"This confounds the distinction and proportion of offences; and, by affixing the same ideas of guilt upon the man who coins a leaden groat, and him who assassinates his sovereign, takes off from that horror which ought to attend the very mention of the crime of high treason, and makes it more familiar to the subject." He was witting to alter the law, as it respected other crimes, but not with reference to high treason.
§ A division then took place.
| For the Amendment | 47 |
| Against it | 82 |
| Majority | —15 |
Mr. Yorkeproposed as an amendment, "That the provisions of the Bill should not extend to high treason," which was carried without a division. The right hon. gentleman next moved, "That petty treason should also be exempted front its provisions."
Mr. C. W. Wynn, Mr. Preston, and Mr. W. Smyth, opposed the motion, which was supported by Mr. Yorke and Mr. Bathurst.
§ The amendment was carried, the other clauses agreed to, and the report was ordered to be received on Friday.