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Dr. W. should have recollected that Cicero took off this forfeiture at the request of Brutus, and acted contrary to this opinion in the same case upon which he gave it. Vid. Ep. ad Brut. 15. & 18. Besides, Cicero speaks upon a very partial consideration of the matter. I will produce from our own annals, the arguments of a nobleman, who weighed the subject more justly. In a debate in the house of lords in 1745, upon the clause of an act of parliament for continuing * these forfeitures, the duke of Bedford spoke to this effect.
“ We are here assembled to deliberate not for any particular purposes or narrow plans, but for the great end of Society, the
*“In order to abolish such hereditary punishment entirely, it was enacted by statute 7 Ann. c. 21, that after the decease of the late Pretender, no attainder for treason should extend to the disinherit. ing of any heir, nor to the prejudice of any person other than the traitor himself. By which the law of the forfeitures for high treason would by this time have been at an end, had not a subsequent statute intervened to give them a longer duration. The history of this mat. tèr is somewhat singular and worthy observation. At the time of the Union, the crime of treason in Scotland was, by the Scots law in many respects different from that of treason in England ; and par. ticularly in its consequence of forfeiture of entailed estates, which was more peculiarly English : yet it seemed necessary that a crime so nearly affecting government, should both in its essence and consequence be put upon the same footing in both parts of the united kingdom. In new-modelling these laws, the Scotch nation and the English house of commons struggled hard, partly to maintain and partly to acquire a total immunity from forfeiture and corruption of blood : which the house of lords as firmly resisted. At length a compromise was agreed to, which was established by this statute, viz. that the same crimes and no other should be treason in Scotland that are so in England; and that the English forfeitures and corruption of blood should take place in Scotland till the death of the then Pre. tender, and then cease throughout the whole of Great Britain : the lords artfully proposing this temporary clause in hopes, it is said, that the prudence of succeeding parliaments would make it perpetual. This has partly been done by the statute 17 Geo. II. c. 39.; the ope. ration of these indemnifying clauses being thereby still further sus. pended till the death of the sons of the Pretender.” Blackstone's Comm. Vol. IV. c. 29. p. 384. 8vo, edit. 1773.
What was foreseen has happened : the act was made perpetual in 1799.
general happiness; that as we are not to gratify the caprices of the people by vilifying the dignity or restraining the power of the throne, so we are not to appease the suspicions of the throne by sacrificing the safety or honour of the people; we are to support our sovereign, indeed, but not by such means as destroy the ends for which sovereignty was established, the public welfare and common security.
The motion is therefore in my opinion wholly indefensible, be. cause, though it should be granted that it may add some security to the throne, it must in proportion impair the happiness of the people, as it must fill the nation in this time of general commotion with anxiety; and oblige almost every man to the unnatural and unavailing care of watching the conduct of another, and at last must involve thcusands in undeserved misery, by punishing them for crimes which they did not commit, and which they could not prevent, and inflicting penalties therefore, which can have no other effect than that of enriching by forfeitures the minions of the court.
“ Theso reasons, my lords, are sufficiently powerful to justify me in opposing the motion; and yet there remains another, which perhaps, when it is fully examined, may appear equally weighty. Notwithstanding the happiness of our present state, the protection of our right and the security of our property ; notwithstanding the confidence which may be reposed in the equity, the mo. deration and the wisdom of his majesty, and the hopes which we may reasonably have of being governed to all succeeding ages, by his illustrious descendants, with the same justice, magnanimity, and pru. dence, yet I am not yet confident that these hopes may not be disappointed. I know not any evidence by which I can ascertain the continuance of these blessings, or by which I can prove to the people of England, that there never will come a time, in which a superstitious, or ambitious, or a tyrannical prince may once more attempt the subversion of their rights, the seizure of their properties, or the abolition of their religion. I am not certain that our constitution is so strongly built, that it can never want repairs ; or that our laws are so judiciously formed, as that they may not become, in the hands of rapa ity, the tools of avarice, or, in the hands of cruelty, the scourge of oppression.
“ Whenever this fatal period shall arrive, it must be granted, my lords, that another revolution will be necessary,
and that every law, which shall hinder the people from making use of the only remedy which then remains, will obstruct the public happiness, and counters act the good design of government; and surely, my lords, a law which ir yolves the son in the guilt of his father, must naturally extinguish that ardour of patriotism, by which all revolutions have been accom. plished. For who will be found sufficiently hardy, to oppose the crown, when, if he should happen to fail, he must not only perish as a traitor, but sink his whole posterity in poverty and disgrace ?
66 Since therefore, my lords, it appears to me not more likely that the king of England will be in danger from his subjects, than the peo. ple of England will be in danger from their king, I think it conve,
nient to hold the balance equal between them; as I would not give the people any exemption, which might encourage them to rebel, I would give the crown no such prerogative as may encourage any future monarch to oppression.
6. Thus, my lords, I have laid before you the arguments which in., fluence me to disapprove the motion, and which will, I believe, determine me to vote against it: for though I am desirous to secure the throne, I would not willingly secure it by disarming the people, but by placing them as guards before it.” Parliamentary Debates, Vol. I. p. 187. 8vo, edit. 1792.
Concerning the immunity which Dr. W. would claim for the Pretender, p. 139, upon the score of his being a foreigner, and therefore not subject to our laws, I differ from im. The Pretender was a private person, not authorized by any sovereign power, nor entitled, according to the law of nations, by his own situation or circumstances, to make war; and therefore, if taken, might justly be subjected to punishment. Whether or no it were justifiable to set a price upon
his head, is a question upon which I will not presume to speak: but, without alluding to the act of any particular nation or government, I scruple not to affirm, that to propose a reward or pardon for bringing in any man, alive or dead, is to offer a hire for assassination.
And now, having concluded the observations which I had to make upon the several parts of his book, I would willingly ask the author a question upon the general subject of it. To what part of the British nation, does he think the remembrance of the transactions which he relates, will be pleasant or honourable ? Not to the army; for he tells them of their disgraces. Not to the inhabitants of the Highlands ; for he reminds them of their faults, and their chastisement. Not to the royal party, and the government; for he blames their severity. The transactions, he acknowledges*, are as interesting to us as if they were our own. To make choice of these, therefore, for a subject of history, is to insult us with our domestic misfortunes and errors; and to recall to public notice those facts, which one party would wish to conceal, and the others must be ashamed to remember.
** Ut factis indoleamus tanquam nostris.' P, 2.
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