CHAPTER IV.

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!