Miscellaneous Writings and Speeches - Volume 4 by Thomas Badington Macaulay (red white and royal blue hardcover txt) 📖
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after day. The honourable Member complains that those petitions have not been treated with proper respect. Sir, they have been treated with much more respect than they deserved. He asks why we are to suppose that the petitioners are not competent to form a judgment on this question? My answer is, that they have certified their incompetence under their own hands. They have, with scarcely one exception, treated this question as a question of divinity, though it is purely a question of property: and when I see men treat a question of property as if it were a question of divinity, I am certain that, however numerous they may be, their opinion is entitled to no consideration. If the persons whom this bill is meant to relieve are orthodox, that is no reason for our plundering anybody else in order to enrich them. If they are heretics, that is no reason for our plundering them in order to enrich others. I should not think myself justified in supporting this bill, if I could not with truth declare that, whatever sect had been in possession of these chapels, my conduct would have been precisely the same. I have no peculiar sympathy with Unitarians. If these people, instead of being Unitarians, had been Roman Catholics, or Wesleyan Methodists, or General Baptists, or Particular Baptists, or members of the Old Secession Church of Scotland, or members of the Free Church of Scotland, I should speak as I now speak, and vote as I now mean to vote.
Sir, the whole dispute is about the second clause of this bill. I can hardly conceive that any gentleman will vote against the bill on account of the error in the marginal note on the third clause. To the first clause my honourable friend the Member for the University of Oxford said, if I understood him rightly, that he had no objection; and indeed a man of his integrity and benevolence could hardly say less after listening to the lucid and powerful argument of the Attorney General. It is therefore on the second clause that the whole question turns.
The second clause, Sir, rests on a principle simple, well-known, and most important to the welfare of all classes of the community. That principle is this, that prescription is a good title to property, that there ought to be a time of limitation, after which a possessor, in whatever way his possession may have originated, must not be dispossessed. Till very lately, Sir, I could not have imagined that, in any assembly of reasonable, civilised, of educated men, it could be necessary for me to stand up in defence of that principle. I should have thought it as much a waste of the public time to make a speech on such a subject as to make a speech against burning witches, against trying writs of right by wager of battle, or against requiring a culprit to prove his innocence by walking over red-hot ploughshares. But I find that I was in error. Certain sages, lately assembled in conclave at Exeter Hall, have done me the honour to communicate to me the fruits of their profound meditations on the science of legislation. They have, it seems, passed a resolution declaring that the principle, which I had supposed that no man out of Bedlam would ever question, is an untenable principle, and altogether unworthy of a British Parliament. They have been pleased to add, that the present Government cannot, without gross inconsistency, call on Parliament to pass a statute of limitation. And why? Will the House believe it? Because the present Government has appointed two new Vice Chancellors.
Really, Sir, I do not know whether the opponents of this bill shine more as logicians or as jurists. Standing here as the advocate of prescription, I ought not to forget that prescriptive right of talking nonsense which gentlemen who stand on the platform of Exeter Hall are undoubtedly entitled to claim. But, though I recognise the right, I cannot but think that it may be abused, and that it has been abused on the present occasion. One thing at least is clear, that, if Exeter Hall be in the right, all the masters of political philosophy, all the great legislators, all the systems of law by which men are and have been governed in all civilised countries, from the earliest times, must be in the wrong. How indeed can any society prosper, or even exist, without the aid of this untenable principle, this principle unworthy of a British legislature? This principle was found in the Athenian law. This principle was found in the Roman law. This principle was found in the laws of all those nations of which the jurisprudence was derived from Rome. This principle was found in the law administered by the Parliament of Paris; and, when that Parliament and the law which it administered had been swept away by the revolution, this principle reappeared in the Code Napoleon. Go westward, and you find this principle recognised beyond the Mississippi. Go eastward, and you find it recognised beyond the Indus, in countries which never heard the name of Justinian, in countries to which no translation of the Pandects ever found its way. Look into our own laws, and you will see that the principle, which is now designated as unworthy of Parliament, has guided Parliament ever since Parliament existed. Our first statute of limitation was enacted at Merton, by men some of whom had borne a part in extorting the Great Charter and the Forest Charter from King John. From that time to this it has been the study of a succession of great lawyers and statesmen to make the limitation more and more stringent. The Crown and the Church indeed were long exempted from the general rule. But experience fully proved that every such exemption was an evil; and a remedy was at last applied. Sir George Savile, the model of English country gentlemen, was the author of the Act which barred the claims of the Crown. That eminent magistrate, the late Lord Tenterden, was the author of the Act which barred the claims of the Church. Now, Sir, how is it possible to believe that the Barons, whose seals are upon our Great Charter, would have perfectly agreed with the great jurists who framed the Code of Justinian, with the great jurists who framed the Code of Napoleon, with the most learned English lawyers of the nineteenth century, and with the Pundits of Benares, unless there had been some strong and clear reason which necessarily led men of sense in every age and country to the same conclusion? Nor is it difficult to see what the reason was. For it is evident that the principle which silly and ignorant fanatics have called untenable is essential to the institution of property, and that, if you take away that principle, you will produce evils resembling those which would be produced by a general confiscation. Imagine what would follow if the maxims of Exeter Hall were introduced into Westminster Hall. Imagine a state of things in which one of us should be liable to be sued on a bill of exchange indorsed by his grandfather in 1760. Imagine a man possessed of an estate and manor house which had descended to him through ten or twelve generations of ancestors, and yet liable to be ejected because some flaw had been detected in a deed executed three hundred years ago, in the reign of Henry the Eighth. Why, Sir, should we not all cry out that it would be better to live under the rule of a Turkish Pasha than under such a system. Is it not plain that the enforcing of an obsolete right is the inflicting of a wrong? Is it not plain that, but for our statutes of limitation, a lawsuit would be merely a grave, methodical robbery? I am ashamed to argue a point so clear.
And if this be the general rule, why should the case which we are now considering be an exception to that rule? I have done my best to understand why. I have read much bad oratory, and many foolish petitions. I have heard with attention the reasons of my honourable friend the Member for the University of Oxford; and I should have heard the reasons of the honourable Member for Kent, if there had been any to hear. Every argument by which my honourable friend the Member for the University of Oxford tried to convince us that this case is an exception to the general rule, will be found on examination to be an argument against the general rule itself. He says that the possession which we propose to sanction was originally a wrongful possession. Why, Sir, all the statutes of limitation that ever were made sanction possession which was originally wrongful. It is for the protection of possessors who are not in condition to prove that their possession was originally rightful that statutes of limitation are passed. Then my honourable friend says that this is an ex post facto law. Why, Sir, so are all our great statutes of limitation. Look at the Statute of Merton, passed in 1235; at the Statute of Westminster, passed in 1275; at the Statute of James the First, passed in 1623; at Sir George Savile's Act, passed in the last century; at Lord Tenterden's Act, passed in our own time. Every one of those Acts was retrospective. Every one of them barred claims arising out of past transactions. Nor was any objection ever raised to what was so evidently just and wise, till bigotry and chicanery formed that disgraceful league against which we are now contending. But, it is said, it is unreasonable to grant a boon to men because they have been many years doing wrong. The length of the time during which they have enjoyed property not rightfully their own, is an aggravation of the injury which they have committed, and is so far from being a reason for letting them enjoy that property for ever, that it is rather a reason for compelling them to make prompt restitution. With this childish sophistry the petitions on our table are filled. Is it possible that any man can be so dull as not to perceive that, if this be a reason, it is a reason against all our statutes of limitation? I do a greater wrong to my tailor if I withhold payment of his bill during six years than if I withhold payment only during two years. Yet the law says that at the end of two years he may bring an action and force me to pay him with interest, but that after the lapse of six years he cannot force me to pay him at all. It is much harder that a family should be kept out of its hereditary estate during five generations than during five days. But if you are kept out of your estate five days you have your action of ejectment; and, after the lapse of five generations, you have no remedy. I say, therefore, with confidence, that every argument which has been urged against this bill is an argument against the great principle of prescription. I go further, and I say that, if there be any case which, in an especial manner, calls for the application of the principle of prescription, this is that case. For the Unitarian congregations have laid out so much on these little spots of
Sir, the whole dispute is about the second clause of this bill. I can hardly conceive that any gentleman will vote against the bill on account of the error in the marginal note on the third clause. To the first clause my honourable friend the Member for the University of Oxford said, if I understood him rightly, that he had no objection; and indeed a man of his integrity and benevolence could hardly say less after listening to the lucid and powerful argument of the Attorney General. It is therefore on the second clause that the whole question turns.
The second clause, Sir, rests on a principle simple, well-known, and most important to the welfare of all classes of the community. That principle is this, that prescription is a good title to property, that there ought to be a time of limitation, after which a possessor, in whatever way his possession may have originated, must not be dispossessed. Till very lately, Sir, I could not have imagined that, in any assembly of reasonable, civilised, of educated men, it could be necessary for me to stand up in defence of that principle. I should have thought it as much a waste of the public time to make a speech on such a subject as to make a speech against burning witches, against trying writs of right by wager of battle, or against requiring a culprit to prove his innocence by walking over red-hot ploughshares. But I find that I was in error. Certain sages, lately assembled in conclave at Exeter Hall, have done me the honour to communicate to me the fruits of their profound meditations on the science of legislation. They have, it seems, passed a resolution declaring that the principle, which I had supposed that no man out of Bedlam would ever question, is an untenable principle, and altogether unworthy of a British Parliament. They have been pleased to add, that the present Government cannot, without gross inconsistency, call on Parliament to pass a statute of limitation. And why? Will the House believe it? Because the present Government has appointed two new Vice Chancellors.
Really, Sir, I do not know whether the opponents of this bill shine more as logicians or as jurists. Standing here as the advocate of prescription, I ought not to forget that prescriptive right of talking nonsense which gentlemen who stand on the platform of Exeter Hall are undoubtedly entitled to claim. But, though I recognise the right, I cannot but think that it may be abused, and that it has been abused on the present occasion. One thing at least is clear, that, if Exeter Hall be in the right, all the masters of political philosophy, all the great legislators, all the systems of law by which men are and have been governed in all civilised countries, from the earliest times, must be in the wrong. How indeed can any society prosper, or even exist, without the aid of this untenable principle, this principle unworthy of a British legislature? This principle was found in the Athenian law. This principle was found in the Roman law. This principle was found in the laws of all those nations of which the jurisprudence was derived from Rome. This principle was found in the law administered by the Parliament of Paris; and, when that Parliament and the law which it administered had been swept away by the revolution, this principle reappeared in the Code Napoleon. Go westward, and you find this principle recognised beyond the Mississippi. Go eastward, and you find it recognised beyond the Indus, in countries which never heard the name of Justinian, in countries to which no translation of the Pandects ever found its way. Look into our own laws, and you will see that the principle, which is now designated as unworthy of Parliament, has guided Parliament ever since Parliament existed. Our first statute of limitation was enacted at Merton, by men some of whom had borne a part in extorting the Great Charter and the Forest Charter from King John. From that time to this it has been the study of a succession of great lawyers and statesmen to make the limitation more and more stringent. The Crown and the Church indeed were long exempted from the general rule. But experience fully proved that every such exemption was an evil; and a remedy was at last applied. Sir George Savile, the model of English country gentlemen, was the author of the Act which barred the claims of the Crown. That eminent magistrate, the late Lord Tenterden, was the author of the Act which barred the claims of the Church. Now, Sir, how is it possible to believe that the Barons, whose seals are upon our Great Charter, would have perfectly agreed with the great jurists who framed the Code of Justinian, with the great jurists who framed the Code of Napoleon, with the most learned English lawyers of the nineteenth century, and with the Pundits of Benares, unless there had been some strong and clear reason which necessarily led men of sense in every age and country to the same conclusion? Nor is it difficult to see what the reason was. For it is evident that the principle which silly and ignorant fanatics have called untenable is essential to the institution of property, and that, if you take away that principle, you will produce evils resembling those which would be produced by a general confiscation. Imagine what would follow if the maxims of Exeter Hall were introduced into Westminster Hall. Imagine a state of things in which one of us should be liable to be sued on a bill of exchange indorsed by his grandfather in 1760. Imagine a man possessed of an estate and manor house which had descended to him through ten or twelve generations of ancestors, and yet liable to be ejected because some flaw had been detected in a deed executed three hundred years ago, in the reign of Henry the Eighth. Why, Sir, should we not all cry out that it would be better to live under the rule of a Turkish Pasha than under such a system. Is it not plain that the enforcing of an obsolete right is the inflicting of a wrong? Is it not plain that, but for our statutes of limitation, a lawsuit would be merely a grave, methodical robbery? I am ashamed to argue a point so clear.
And if this be the general rule, why should the case which we are now considering be an exception to that rule? I have done my best to understand why. I have read much bad oratory, and many foolish petitions. I have heard with attention the reasons of my honourable friend the Member for the University of Oxford; and I should have heard the reasons of the honourable Member for Kent, if there had been any to hear. Every argument by which my honourable friend the Member for the University of Oxford tried to convince us that this case is an exception to the general rule, will be found on examination to be an argument against the general rule itself. He says that the possession which we propose to sanction was originally a wrongful possession. Why, Sir, all the statutes of limitation that ever were made sanction possession which was originally wrongful. It is for the protection of possessors who are not in condition to prove that their possession was originally rightful that statutes of limitation are passed. Then my honourable friend says that this is an ex post facto law. Why, Sir, so are all our great statutes of limitation. Look at the Statute of Merton, passed in 1235; at the Statute of Westminster, passed in 1275; at the Statute of James the First, passed in 1623; at Sir George Savile's Act, passed in the last century; at Lord Tenterden's Act, passed in our own time. Every one of those Acts was retrospective. Every one of them barred claims arising out of past transactions. Nor was any objection ever raised to what was so evidently just and wise, till bigotry and chicanery formed that disgraceful league against which we are now contending. But, it is said, it is unreasonable to grant a boon to men because they have been many years doing wrong. The length of the time during which they have enjoyed property not rightfully their own, is an aggravation of the injury which they have committed, and is so far from being a reason for letting them enjoy that property for ever, that it is rather a reason for compelling them to make prompt restitution. With this childish sophistry the petitions on our table are filled. Is it possible that any man can be so dull as not to perceive that, if this be a reason, it is a reason against all our statutes of limitation? I do a greater wrong to my tailor if I withhold payment of his bill during six years than if I withhold payment only during two years. Yet the law says that at the end of two years he may bring an action and force me to pay him with interest, but that after the lapse of six years he cannot force me to pay him at all. It is much harder that a family should be kept out of its hereditary estate during five generations than during five days. But if you are kept out of your estate five days you have your action of ejectment; and, after the lapse of five generations, you have no remedy. I say, therefore, with confidence, that every argument which has been urged against this bill is an argument against the great principle of prescription. I go further, and I say that, if there be any case which, in an especial manner, calls for the application of the principle of prescription, this is that case. For the Unitarian congregations have laid out so much on these little spots of
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