I shall in this chapter give some portion of a debate which took place
in the House of Lords in the year 1736, on the occasion of an attempt
made by Parliament to introduce a Bill against smugglers, so curiously
similar in many points to the Acts under discussion, that I feel it not
needful to apologize for introducing it in the present Essay, but call
the reader’s attention very markedly to the whole matter, inasmuch as
many arguments which have been advanced, on one side or the other, in
the discussion in which we are now engaged, were also advanced there, as
the reader can himself see.
The case in point was a Bill to prevent smuggling, which enacted that
upon information being given upon oath before any one justice of the
peace, that any persons, to the number of three or more, were assembled
to assist in smuggling, the justice might commit them without bail.
The great similarity, even of the very wording of this to the Acts which
we oppose, will be evident to the reader; but I must point out that this
bill against smugglers was infinitely less grievous than these Acts,
inasmuch as the action of the justice of the peace here extended only to
unbailable imprisonment before trial, which was followed in time by the
regular course of jury trial.
Lord Hardwicke, whose speech I quote, was a Crown lawyer in the reign of
George II., and while calling attention to every part of his speech, I
would particularly mark the concluding paragraph, where every word, with
the mere alteration of a name, is directly applicable to the question we
are now discussing.
_Cobbett’s Parliamentary History; debate in the Lords on the Bill to
Prevent Smuggling, May 15, 1736._—“The said bill was read for the first
and second time in the House of Lords, without any considerable debate,
but when it came before the committee several amendments were offered by
Lord Hardwicke.”
Lord Hardwicke spoke as follows:—“I am very sensible how much it
concerns us to prevent that fraudulent and pernicious practice called
smuggling, and therefore I shall always be ready to join in such
measures as I think proper and necessary for that purpose; but at the
same time, my Lords, do not let us forget the freedom of our
constitution, and the liberties and privileges of the people; for
slavery would be a price too dear even for the most absolute security
against smuggling.[48] For this reason, when any method is proposed, or
bill brought in for the detecting, apprehending, and punishing persons
guilty of such practices, we ought to consider, not only whether it will
be effectual for the benefit proposed, but whether it will be consistent
with our constitution and the liberties of the people. By all those who
understand anything of our constitution, it must be granted that one of
the greatest barriers for the liberties of the people is that
fundamental maxim of the laws of this kingdom by which every man is
presumed innocent till the contrary appears by some overt act of his
own, and that act must be such an one as is itself unlawful, and of such
a nature that no innocent construction can be put upon it. We have in
our laws no such thing as a crime by implication, nor do we pretend to
judge of or to punish a man for mere thinking. From hence it is that a
wicked or malicious intention can never with us be proved by
witnesses.[49] Facts only are admitted to be proved, and the judge and
jury are from these facts to determine with what intention they were
committed. But no judge or jury can ever by our laws suppose, much less
determine, that an action in itself innocent or indifferent was attended
with a criminal intention. Such an inference, my Lords, was never made
in a free country, nor under any government but that of a tyrannical as
well as arbitrary administration.
“Another security for our liberties is that no subject can be imprisoned
unless some felonious and high crime be sworn against him. If the crime
be not in itself atrocious, or if there be only a suspicion sworn
against him, the greatest hardship he can be subjected to is to be
imprisoned till he gives bail for his appearance; and if any of our
inferior judges refuse to admit him to bail, the subject so aggrieved
may immediately apply by Habeas Corpus to the King’s Courts in
Westminster Hall, the judges of which are now, by the late happy
Revolution, put above being influenced by any authority but that of
justice and the established laws of the country; nor awed by anything
but that of their own reputation or an impeachment in Parliament, which
would certainly be the consequence if they refused justice to any of the
least of his Majesty’s subjects. This, my Lords, with respect to private
persons, is the very foundation-stone of all our liberties, and if we
remove it, if we but knock off a corner, we may very probably overturn
the whole fabrick.
“Having premised these observations upon our constitution, and upon the
nature of a free government, give me leave, my Lords, to apply them to
that clause in this bill which subjects every man[50] in this kingdom to
the danger, nay, I may say certainty, of being committed to prison by a
single justice of peace, without bail or mainprize, and of being
convicted and transported as a smuggler; and all this without his having
been guilty of any one overt act, except that of travelling properly
armed for his defence, and having perhaps the misfortune to meet with
two of his friends upon the road armed in the same manner, in case any
two[51] rogues of informers shall swear that this honest man and his
friends were assembled and armed in order to be aiding and assisting in
the landing of prohibited goods. This regulation, when stripped of that
multiplicity of words which render obscure the meaning and interest of
every clause of an Act of Parliament, really seems to me to be the most
terrible and the most entrapping regulation that was ever proposed in
any country. If it passes into a law, I am sure it will not be quite
safe for any three gentlemen in the kingdom to be seen in company
together. It is evident at first view that this regulation is repugnant
to all the maxims of free government. The wearing of arms is in itself
an act not only innocent but commendable, therefore no presumption of
any crime can thence be inferred.[52] And for this reason the admitting
of witnesses to prove that any three men were so armed for purposes of
smuggling, is admitting witnesses to prove an intention without any one
overt act from whence that intention can possibly be inferred, which is
inconsistent with the freedom of our constitution and with the whole
tenor of the laws of this kingdom. We may as well admit witnesses to
prove that a man got up in the morning and put on his clothes in order
to assist in the running of goods, which I am sure would be ridiculous
as well as pernicious; but this is not all the hardship of the case:
witnesses are not only to be admitted to prove a wicked intention
without an overt act, but they are rewarded for giving such
testimony,[53] which is a most dangerous practice, and a practice we
have lately got too much into; for, in my opinion, no man ought to be
admitted as a witness against any criminal if he be to have any share of
the payment on his conviction;[54] however, in no case is it so
dangerous as it will be in this, because when false witnesses come to
swear a _fact_ upon a man which he is innocent of, he may prove himself
to have been at another place at the time, or he may fall upon many
other ways to make his innocence appear, and to convict the witnesses of
perjury, and this is in all other cases a great guard to the innocent;
but in the present case I should be glad to know how it will be possible
for a man to prove that he had no such _intention_ as is sworn against
him, or to convict a false witness of perjury.[55]
“With respect, my Lords, to the security of the subject against unjust
imprisonment, and with respect to the liberty of applying to the King’s
Courts, these valuable privileges are all to be taken away by this new
regulation; a man is to be imprisoned without so much as a pretence of
his having been guilty of any crime,[56] only because a sorry fellow
perhaps has gone and sworn before a country justice, out of malice, that
he intended to assist in the running of goods; and though by our
constitution every man has a right to insist that in such cases no
extravagant bail shall be exacted from him, yet now he is to be
committed without bail, there to remain till he can force the justice,
and his informer, to bring him to a trial, which I do not see how he can
do, for by this clause the Habeas Corpus Act seems to be repealed.
Again, if the justice should commit iniquity, either in not admitting of
a proper and full vindication, or in delaying to bring the person
accused to trial, where shall such person apply for relief? For the
power of relief is by this clause taken from the King’s Courts, and is
given to the justices of the peace, who are removable at the pleasure of
a minister, and may, most of them, be made the drudging tools of an
administration. _Therefore I must think it very extraordinary, and
inconsistent with the principles of the Revolution, to give such powers
to such judges, or to give them any supreme and uncontrollable power
whatsoever, especially in cases where the liberty of a subject is in
immediate danger._
“_I am very certain that if ever I should see such a law passed I should
look upon our constitution as at an end._ Yet we may have an
administration that would be fond of having such a law passed, perhaps
in order to guard against those treasonable practices which their own
conduct had made frequent, and in such a case would not this very law be
a good precedent for them, would not they have reason to say to
Parliament, ‘What! will you refuse to grant that security against
treasonable practices which your ancestors have granted against the
practice of smuggling?’”
After having proposed important amendments, Lord Hardwicke proceeded to
say:—
“These amendments will, in my opinion, in some measure prevent those
dangers which may accrue with respect to the freedom of our constitution
and the liberty of the subject. I say, my Lords, in some measure, for
neither these amendments, nor any amendments, can prevent its being a
very dangerous bill, and such an one as I am sorry to see necessary in
this once happy kingdom. It is one absolutely repugnant to the whole
tenor of our laws, and inconsistent with the liberty and happiness of
the people.”
“I know, my Lords, it may be said that no man can be absolutely safe
from treachery and perjury; but from all our law-books I defy any man to
suppose a case where it is so easy to cook up a treacherous yet feasible
accusation against one who has not been guilty of the least
imprudence,[57] or so safe to give a false testimony as it will be in
the case I have now laid before you. For in all or most other cases
there must be a confederacy or combination between two or more persons
in order to get a man convicted upon a false information, in which case
the confederates are in danger of being betrayed by one another; and
even the facts themselves, which are falsely sworn against a man, often
furnish him with the means for justifying himself, and condemning his
accusers, whereas in the present case there is no need of any
confederacy, nor can the person accused justify himself by any means I
can think of.[58]
“Upon the whole, my Lords, I must think this bill one of the most severe
and dangerous bills that was ever passed by a British legislature, and
yet notwithstanding its severity I am afraid it will be very far from
answering the end in view. I am afraid that instead of preventing
smuggling it will render hardy and desperate all those who shall
hereafter embark in that pernicious trade, which will make them more
bold and enterprising than they ever were heretofore, and their common
danger will unite them closer together, which will make them more
powerful and formidable.... By such laws we may ruin our constitution,
we may subject ourselves to arbitrary power, but even arbitrary power
itself will not prevent smuggling; for in France, where arbitrary power
has long been established, where the punishment of every sort of
smuggling is death or the galleys, where they keep up a particular sort
of army called _les maltôtiers_ for that very purpose, yet smuggling is
in that kingdom as frequent as in England, and their smugglers are much
more desperate than ours, for they march in little armies, are well
armed and disciplined, and often engage in battle with the custom-house
officers and the maltôtiers. The gentlemen of the French army are indeed
but seldom employed in such exploits; they think it beneath them to
engage against banditti or to hunt after criminals; this low sort of
work they look on as fit only for maltôtiers or sheriffs’-officers, and
though they have a vast number of such in France, yet with them and with
all the other advantages they have, it has never yet been in their power
to prevent smuggling.”[59]
To this speech of Lord Hardwicke a reply was made abounding in
arguments, which bear a remarkable similarity to those used now against
us by our opponents, of which I will merely give the following
specimens:—“I shall readily agree, my Lord,” says the supporter of the
Smuggling Act, in reply to Lord Hardwicke, “that we ought to be
extremely cautious in granting any new powers which may any way encroach
on the constitution or upon the liberties of the people; but if we make
a phantom of every new power and new penalty that may be necessary, and
give a loose to our imaginations by supposing that every such power or
penalty will be made a wrong and unjust use of, and turned towards the
oppression and ruin of the subject, instead of being applied to their
relief and preservation, we shall never grant any new power; for no
power was ever granted, nor can be granted, upon which a fruitful
imagination may not form various scenes of horror and destruction;[60]
nay, no power can be granted but what may truly be made a wrong use of,
but while we have a Parliament subsisting, while we are subjected to no
earthly power but what depends upon Parliament, we have no occasion to
frighten ourselves with such chimeras.”
After he has shown to his own satisfaction, as our opponents also do,
that under the Act complained of no innocent person has anything to
fear, and after he has assured Lord Hardwicke that the justices are not
in the least likely to judge wrongly, for the excellent reason that “if
they did so they would be very derelict in their duty,” he goes on to
use the very same argument which the supporters of the Acts which we
oppose have lately been very fond of using. They affirm that many a raw
girl, trembling on the verge of evil courses, being brought under the
Acts, is terrified back into a virtuous life by the penalties which she
is made to undergo. Similarly Lord Hardwicke’s opponent argues: “A
month’s confinement in a correction-house, with the severest sort of
whipping, would be very far from being an adequate punishment for the
first offence.” But such is his opinion of the reclamatory effects of
this beneficent process that he adds, “A raw country fellow, or a poor
labouring man, may for a reward easily be drawn into assisting in the
running of goods, where no violence is intended, and may for that
purpose be prevailed on to loiter and wait somewhere near the sea
coasts; for such a man a month’s confinement and whipping may be a
sufficient admonition; he may be thereby reclaimed and frightened from
ever engaging again in such practices.”[61]
To these and similar arguments it was replied by Lord Chancellor
Talbot:—“My Lords, we are fully sensible that it is the duty of
Parliament to grant a revenue sufficient for supporting the
Government,[62] and to contrive such methods of collecting the revenue
as may be effectual; but we likewise know that it is the duty of
Parliament to support the constitution, and to preserve the liberties of
the people; therefore, when it begins to appear that the methods
prescribed by Parliament are not effectual for the end intended, nor can
be made so without endangering our constitution, those methods ought not
to be further pursued.... It is always with regret and sorrow, my Lords,
that I form to myself any apprehensions of danger to my native country,
and therefore I shall always avoid it as much as possible; but we have
already created so many new crimes and transgressions, and have
inflicted so many new pains and penalties for preventing those
transgressions, that, in my opinion, the fears of increasing them can in
no case be called phantoms. Our Parliaments have, it is true, been
hitherto able, generally speaking, to give a check to every wrong use of
any power and to bring the offenders to punishment; and while our
Parliament continues to be independent of those who have the exercise of
power,[63] their will, as well as their ability, will continue the same.
But we know the effect of pains and penalties in other countries; we
know that Parliaments, Senates, and Assemblies have, by such means, been
made subservient to the worst and most tyrannical uses that could be
made of power;[64] and if this should ever unfortunately happen to be
our case, our Parliaments will neither be willing nor able to check the
abuse of any power, or to punish the offenders. For this reason, we
ought to be extremely jealous of loading our people with pains and
penalties, and subjecting them to a multitude of penal laws; for
oppression may be easily cloaked under an Act of Parliament, and many
may be punished, under pretence of their having been guilty of some
action made penal by Statute without raising any general murmur among
the people, or giving alarm to those who think _themselves_ in no danger
from any such prosecution. Whereas the least act of oppression without
the pretence of Parliament would raise a general murmur and an universal
alarm, because every man in the kingdom would then think himself in
danger. In this nation no man of common sense would extend his power of
oppression to any great length till he had got a Parliament to his mind;
but when he has got such a Parliament, his power will then be without
control, and by subjecting multitudes of our people to high pains and
penalties, and the danger of being prosecuted upon penal Statute, we may
render it easy for a man to accomplish this end, which, when once
accomplished, may be by the same methods easily preserved as long as he
pleases.
“No law can be proposed, my Lords, for the necessity of which some
reasons may not be urged; even the most tyrannical laws have been made
under the pretence of preventing some real abuse.[65] But all wise
nations have chosen to allow an abuse to escape unpunished rather than
to make such a law as might possibly involve the innocent in the same
punishment with the guilty.
“If ever any such custom or law should come to be established in this
kingdom, the happiness and security of our people would be at an end; we
might expect sometime or other to have informers as numerous and
frequent in our streets, and in all public places, as ever the
‘delatores’ or informers were about Rome under their most tyrannical
emperors.
“I shall grant that if the justice of peace understands the spirit of
our laws, and acts justly, he will examine the informer narrowly as to
circumstances, and will not commit unless the informer gives good
reasons against those he informs against. But the words of this clause
make no such precautions necessary. We are not now to inquire what the
justice _ought_ to do, but what he _may_ do, and I _will_ say that by
these words, an information on oath will be a sufficient authority for
the commitment, and will excuse the justice from all the penalties of
false imprisonment.
“May we not suppose that such informations may be cooked up, and persons
of great credit committed?... Can we say that any subject is safe who
_may_ upon malicious information which he cannot disprove be brought
into such danger? I say, my Lords, on information which he cannot
disprove, for this will always be the case.”
Such were the arguments used for and against the Bill about smuggling.
It is needless to point out to my readers how the same principles have
ever in the history of similar struggles given rise to the same
arguments, and the same actions.
It is impossible not to ask, with a feeling of sorrow and almost of fear
for our country, “Where were the great lawyers in the House of Peers
when this last most unconstitutional law was allowed to pass? How was it
that they, unlike their noble predecessors, sat silent while our
liberties were thus being treacherously invaded? Had they no word for
justice if not for mercy? and had they no power of discernment with
regard to the future woes which such legislation entails?” There was an
appeal once made in the House of Peers, whose echoes seem to have died
away from the chamber of that assembly: I cannot conclude this chapter
better than by quoting it. Echoes which have ceased to be heard inside
that House may be revived perhaps less fruitlessly outside its walls.
In a question which involved (like the Acts against which we contend)
immoral as well as unconstitutional principles, it had been alleged that
“it is justifiable to use every means that God and nature put into our
hands.” To this Lord Chatham replied:[66]—
“I am astonished! shocked! to hear such principles confessed—to hear
them avowed in this House, or in this country, principles equally
unconstitutional, inhuman and unchristian! My Lords, I did not intend to
have encroached again upon your attention, but I cannot repress my
indignation. I feel myself impelled by every duty. My Lords, we are
called upon as members of this House, as Christian men, to protest
against such notions standing near the throne, polluting the ear of
majesty. ‘Means that God and nature put into our hands!’ I know not what
ideas that lord may entertain of God and nature; but I know that such
abominable principles are equally abhorrent to religion and humanity....
These abominable principles, and this more abominable avowal of them,
demand the most decisive indignation. I call upon that right reverend
bench, those holy ministers of the Gospel, and pious pastors of our
Church; I conjure them to join in the holy work, and vindicate the
religion of their God. I appeal to the wisdom and the law of this
learned bench to defend and support the justice of their country. I call
upon the bishops to interpose the unsullied sanctity of their lawn, upon
the learned judges to interpose the purity of their ermine, to save us
from this pollution! I call upon the honour of your Lordships to
reverence the dignity of your ancestors, and to maintain your own. I
call upon the spirit and humanity of my country to vindicate the
national character! I invoke the genius of the constitution.... My
Lords, this awful subject, so important to our honour, our condition,
and our religion, demands the most solemn and effectual inquiry; and I
call upon your Lordships, and the united powers of the State, to examine
it thoroughly and decisively, and to stamp upon it the indelible stigma
of the public abhorrence. And I again implore those holy prelates of our
religion to do away with these iniquities from among us. Let them
perform a lustration! Let them purify this House, and this country, from
this sin!”
But alas! among the hereditary counsellors, the bishops too sit silent
and unmoved when those Acts of 1866 and 1869 were passed, which shook
the bulwarks of our constitution, and which, pronouncing _that_ to be a
necessity which God has pronounced to be deadly sin, exalted its
practice henceforth into an acknowledged and regulated traffic!