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among the Jews, even in King David's time, is evident from the itory of Mephibosheth and his servant Ziba ; for from thence we find, that the estate of Saul had been forfeited, but was restored to Mephibosheth, for his father Jonathan's sake; and was again taken from him by a new forfeiture, on a false fuggestion of Ziba's.
Having thus shewn, Sir, that the forfeiture of a guilty father cannot be looked on as a punishment upon the innocent children, it can no way be said to be inconsistent with religion, especially that precept delivered to the Jews, which forbids punishing the father for the son's iniquity, or the fon for the father's. That law was certainly meant against subjecting either the one or the other, directly to any loss, damage, or inconvenience, for the crime of the other, and not against that consequential damage which is brought upon the son by the forfeiture of the father : and, as I have shewn that forfeitures have been approved of by the most learned Lawyers, both ancient and modern, and were established in the Jewish, Grecian, and Roman Commonwealths, no Gentleman can, I think, have the confidence to aver, that they were, or are, inconsistent with natural justice, or the liberties of a free People.
The next thing I am to fhew, Sir, is, that they are consonant to the laws of this kingdom, both ancient and modern. Here, indeed, I am at some lofs what Gentlemen may mean by our ancient Laws; and therefore, that I may not be accused of any neglect, I shall go as far back as I can. I think I may be very sure, that no man can tell what our Laws were, or whether we had any, before the Romans came amongst us. If Gentlemen mean, hy our ancient Laws, the Laws which prevailed amongst us whilst we were subject to the Romans, then certainly the Law of Forfeiture for treason was established, because it was then a part of the Roman Law. If we come to the Laws of the Saxons, and say, that these were the ancient Laws of the kingdom, I think the point may be as positively determined in favour of Forfeitures ;' for that the feudal customs prevailed 2
C King Ina's
amongst the Saxons, as well as among their other northern neighbours, is, in my opinion, clear to a demonstration : and it is certain, that by the Feudal Law, the forfeiture of the estate was the certain consequence of any breach of fealty in the tenant or vassal. If we refer to the fragments still remaining of the Saxon Laws that were established in this kingdom, the point will be as clear in my favour. It is very true, that from these fragments it appears, that fines, or mulets, were the punishments inflicted upon most crimes; but still there were some that were punishable with death, or forfeiture of estate, and sometimes with both. By a Law of King Ina's it is expressly enacte ed, that whoever fights in the King's palace shall lose his inheritance: Hæreditatem perdat, are the words of the Law. And, by a Law of the famous King Alfred's, it is enacted in these words, Si quis vitæ Regis infidietur, per fe, vel per ultores mercede conductos, vel fervos fuos, vita privetur & omnibus quæ poslidit.
Thus, Sir, it is evident, that the forfeitures were in use amongst the Saxons, and that they have been constantly in use since the conquest, not only in treasons, but in felonies, so far as relates to goods and chattels, no man can deny; therefore they must be allowed to be consonant to our laws, both modern and ancient: and that they are not inconsistent with the freedom of our Constitution, experience itself must bear witness; for we have hitherto preserved our Constitution entire, and I doubt much if we should be able to do the same, should forfeitures of all kinds be abolished: for it is certain, that nothing can be of more dangerous consequences to the liberties of a free people, than frequent civil wars. The first civil war that happened among the Romans, was that which they called the Sociale Belas lum, or the war begun by the several people and cities in Italy, whom the Romans, that is to say, the citizens of Rome, would not admit to an equal share in the Government with themselves. How long did they preserve their liberties after the commencement of the civil war? Not much above fixty years; for this war began about the year 660 after the build
ing of their city, which was their æra ; and Augustus Cæsar, after the battle of Actium, was confirmed in the absolute Go. vernment of that valt empire in the year 725 of the fame æra. And even in this kingdom, a civil war has more than once put an end to the freedom of our Constitution; for the civil war between the Houses of York and Lancaster, established what I may very properly call an absolute Government in the person of Henry the VIIIth ; and the civil war between Charles the Ist and his Parliament, established an absolute Government in the person of Oliver Cromwell. It is true, as our Constitution is more perfect, and better contrived than that of the Roman ever was, it has hitherto always recovered itself; but confidering the change in the manners of our People, if it should hereafter be overturned by a civil war, I am afraid it will never recover : therefore there is nothing we ought to guard more cautiously against than a civil war. The execution of a traitor is a fleeting example which is foon forgot; but the misfortunes of his posterity is a permanent example, which many have con. tinually before their eyes : and as this permanent example certainly contributes to the preventing of civil wars, it must, in my opinion, contribute to the security of the happy Constitution we now live under.
Whether we should ever allow the punishments which produce these permanent examples to be abolished, is a question, Sir, that I shall not take upon me to determine, nor is there any necessity for my giving my opinion upon it at present; but this I am very sure of, that we should not allow these punishments to be abolished, during the life of either of the Pretender's sons; because while they live, there will always be too many amongst us infected with an itch of rebellion; and all Politicians, as well as Lawyers agree, that the greater likelihood there is that a crime of any particular sort will be committed, the more severe ought the punishment to be; for the terror of the punishment ought, if posible, to be made fuperior to the itch of committing the crime, and as that itch,
Ce or inclination, will be stronger and more general during the C lives of the Pretender's two sons, than we can suppose it to be
afterwards, we must have, during that period, more severe en punishments upon treason, than may be afterwards necessary to
be continued. I am therefore strongly in favour of the Bill, for preventing all correspondence between his Majesty's subjects and the Pretender’s fons. .
Sir Dudley Ryder, Attorney-General, May 3, 1744
The Honourable Gentleman (Sir Dudley Ryder) who spoke first in the debate, and distinguished himself so greatly by his long and labourred speech, has laid down these two propositions, upon which he has built his whole argument, That this claufe is consistent with natural justice; and, that it is consistent with our ancient and modern constitution. Yet, notwithstanding all that he has said, I must take the liberty to maintain the contrary.
As to natural justice, no one principle can strike the mind of man more strongly, at the very first view, than that the innocent ought not to suffer for the guilty; and that every man should suffer only for his own fault. Can there be a man fo absurd in this, or any other assembly in the world, as to deny this proposition?
To deny this, is to violate the fundamental laws of all society, to be ignorant of the true nature of punishments, and of the only title men have to inflict any severities upon each other.-The rights of mankind, in a state of nature, still subfist in a society; they ought to subsist; they ought to be abridged in none, farther than is absolutely necessary for the preservation of society. It is in vain, it is nonsense to say, that the safety of society can subsist in, can be advanced or preserved only by the ruin of the innocent widow, of the harmless infant, and of thousands yet unborn. .
How then does the learned Gentleman attempt to palliate the force of this principle? He owns the principle, and he says, if any man will convince him that this clause can deprive any one innocent perfon, either of his natural or legal rights, he will be
against it himself. But, says he, no man has a right to any prom perty, but by the laws of the fociety under which he lives ; and the laws of his country give no right to the child till the death of the parent. Sir, the Gentleman has made but two mistakes in this argument; but they are unluckily such as overturn the whole. For first, every man may learn from his own breaft, that by the laws of nature, all mankind ought to succeed to their ancestors; they are entitled to expect it by the order of all things, and as a kind of retribution from their parents, for their being the authors of their existence, which, without any inheritance, is a state of the utmost wretchedness. And as to the laws of this country, the very law which we are now about to repeal, has created this property in the child, and the child is actually vested in this right, by the very laws of the society in which we live. The fine reasonings of Puffendorf, or Grotius, have therefore nothing to do in this question. The Gentleman supports his argument by authorities, which, putting the case as it really stands, all rather make againft him: he applies the reasonings of Puffendorff and Grotius upon any other cale to this case, which totally and fundamentally differs from that upon which they argued.
Cicero too is brought in to support this cruel opinion: a letter of his to Brutus is quoted upon us, in which he justifies the severities used to Lepidus and his pofterity. But I dare venture to say, there is not one Gentleman in this House, who knows any thing of Cicero, or of his writings, who does not know, that this very letter, which is to be put upon us as an irresistible authority, is no authority at all; for it is generally, if not universally allowed to be a spurious lettter, not wrote by Cicero, but wrote for Cicero, many hundred years after Cicero was de. parted out of this world. And, in truth, had he wrote thiş letter, it would have had very little weight with me. Cicere was, indeed, a great orator ; he made long and fine speechess he is thought to have been greatly learned in the laws of his country; but he was a notorious time-server, a thorough man