to the laxity which has been already remarked to be usual in our older
laws, than to apprehensions entertained by the barons that, if a mere
design to levy war should be rendered treasonable, they might be
exposed to much false testimony and arbitrary construction. But
strained constructions of this very statute, if such were their aim,
they did not prevent. Without adverting to the more extravagant
convictions under this statute in some violent reigns, it gradually
became an established doctrine with lawyers, that a conspiracy to levy
war against the king's person, though not in itself a distinct
treason, may be given in evidence as an overt act of compassing his
death. Great as the authorities may be on which this depends, and
reasonable as it surely is that such offences should be brought within
the pale of high treason, yet it is almost necessary to confess that
this doctrine appears utterly irreconcilable with any fair
interpretation of the statute. It has indeed, by some, been chiefly
confined to cases where the attempt meditated is directly against the
king's person, for the purpose of deposing him, or of compelling him,
while under actual duress, to a change of measures; and this was
construed into a compassing of his death, since any such violence must
endanger his life, and because, as has been said, the prisons and
graves of princes are not very distant.[228] But it seems not very
reasonable to found a capital conviction on such a sententious remark;
nor is it by any means true that a design against a king's life is
necessarily to be inferred from the attempt to get possession of his
person. So far indeed is this from being a general rule, that in a
multitude of instances, especially during the minority or imbecility
of a king, the purposes of conspirators would be wholly defeated by
the death of the sovereign whose name they designed to employ. But
there is still less pretext for applying the same construction to
schemes of insurrection, when the royal person is not directly the
object of attack, and where no circumstance indicates any hostile
intention towards his safety. This ample extention of so penal a
statute was first given, if I am not mistaken, by the judges in 1663,
on occasion of a meeting by some persons at Farley Wood in
Yorkshire,[229] in order to concert measures for a rising. But it was
afterwards confirmed in Harding's case, immediately after the
revolution, and has been repeatedly laid down from the bench in
subsequent proceedings for treason, as well as in treatises of very
great authority.[230] It has therefore all the weight of established
precedent; yet I question whether another instance can be found in our
jurisprudence of giving so large a construction, not only to a penal
but to any other statute.[231] Nor does it speak in favour of this
construction, that temporary laws have been enacted on various
occasions to render a conspiracy to levy war treasonable; for which
purpose, according to this current doctrine, the statute of Edward
III. needed no supplemental provision. Such acts were passed under
Elizabeth, Charles II., and George III., each of them limited to the
existing reign.[232] But it is very seldom that, in an hereditary
monarchy, the reigning prince ought to be secured by any peculiar
provisions; and though the remarkable circumstances of Elizabeth's
situation exposed her government to unusual perils, there seems an air
of adulation or absurdity in the two latter instances. Finally, the
act of 57 G. 3, c. 6, has confirmed, if not extended, what stood on
rather a precarious basis, and rendered perpetual that of 36 G. 3, c.
7, which enacts, "that, if any person or persons whatsoever, during
the life of the king, and until the end of the next session of
parliament after a demise of the Crown, shall, within the realm or
without, compass, imagine, invent, devise, or intend death or
destruction, or any bodily harm tending to death or destruction, maim
or wounding, imprisonment or restraint of the person of the same our
sovereign lord the king, his heirs and successors, or to deprive or
depose him or them from the style, honour, or kingly name of the
imperial crown of this realm, or of any other of his majesty's
dominions or countries, or to levy war against his majesty, his heirs
and successors, within this realm, in order, by force or constraint,
to compel him or them to change his or their measures or counsels, or
in order to put any force or constraint upon, or to intimidate or
overawe, both houses, or either house of parliament, or to move or
stir any foreigner or stranger with force to invade this realm, or any
other his majesty's dominions or countries under the obeisance of his
majesty, his heirs and successors; and such compassings, imaginations,
inventions, devices, and intentions, or any of them, shall express,
utter, or declare, by publishing any printing or writing, or by any
overt act or deed; being legally convicted thereof upon the oaths of
two lawful and credible witnesses, shall be adjudged a traitor, and
suffer as in cases of high treason."
This from henceforth will become our standard of constitutional law,
instead of the statute of Edward III., the latterly received
interpretations of which it sanctions and embodies. But it is to be
noted as the doctrine of our most approved authorities, that a
conspiracy for many purposes which, if carried into effect, would
incur the guilt of treason, will not of itself amount to it. The
constructive interpretation of compassing the king's death appears
only applicable to conspiracies, whereof the intent is to depose or to
use personal compulsion towards him, or to usurp the administration of
his government.[233] But though insurrections in order to throw down
all enclosures, to alter the established law or change religion, or in
general for the reformation of alleged grievances of a public nature,
wherein the insurgents have no special interest, are in themselves
treasonable, yet the previous concert and conspiracy for such purpose
could, under the statute of Edward III., only pass for a misdemeanour.
Hence, while it has been positively laid down, that an attempt by
intimidation and violence to force the repeal of a law is high
treason,[234] though directed rather against the two houses of
parliament than the king's person, the judges did not venture to
declare that a mere conspiracy and consultation to raise a force for
that purpose would amount to that offence.[235] But the statutes of 36
& 57 Geo. 3 determine the intention to levy war, in order to put any
force upon or to intimidate either house of parliament, manifested by
any overt act, to be treason, and so far have undoubtedly extended the
scope of the law. We may hope that so ample a legislative declaration
on the law of treason will put an end to the preposterous
interpretations which have found too much countenance on some not very
distant occasions. The crime of compassing and imagining the king's
death must be manifested by some overt act; that is, there must be
something done in execution of a traitorous purpose. For as no hatred
towards the person of the sovereign, nor any longings for his death,
are the imagination which the law here intends, it seems to follow
that loose words or writings, in which such hostile feelings may be
embodied, unconnected with any positive design, cannot amount to
treason. It is now therefore generally agreed, that no words will
constitute that offence, unless as evidence of some overt act of
treason; and the same appears clearly to be the case with respect at
least to unpublished writings.[236]
The second clause of the statute, or that which declares the levying
of war against the king within the realm to be treason, has given
rise, in some instances, to constructions hardly less strained than
those upon compassing his death. It would indeed be a very narrow
interpretation, as little required by the letter as warranted by the
reason of this law, to limit the expression of levying war to
rebellions, whereof the deposition of the sovereign, or subversion of
his government, should be the deliberate object. Force, unlawfully
directed against the supreme authority, constitutes this offence; nor
could it have been admitted as an excuse for the wild attempt of the
Earl of Essex, on this charge of levying war, that his aim was not to
injure the queen's person, but to drive his adversaries from her
presence. The only questions as to this kind of treason are; first,
what shall be understood by force? and secondly, where it shall be
construed to be directed against the government? And the solution of
both these, upon consistent principles, must so much depend on the
circumstances which vary the character of almost every case, that it
seems natural to distrust the general maxims that have been delivered
by lawyers. Many decisions in cases of treason before the revolution
were made by men so servile and corrupt, they violate so grossly all
natural right and all reasonable interpretation of law, that it has
generally been accounted among the most important benefits of that
event to have restored a purer administration of criminal justice.
But, though the memory of those who pronounced these decisions is
stigmatised, their authority, so far from being abrogated, has
influenced later and better men; and it is rather an unfortunate
circumstance, that precedents which, from the character of the times
when they occurred, would lose at present all respect, having been
transfused into text-books, and formed perhaps the sole basis of
subsequent decisions, are still in not a few points the invisible
foundation of our law. No lawyer, I conceive, prosecuting for high
treason in this age, would rely on the case of the Duke of Norfolk
under Elizabeth, or that of Williams under James I., or that of
Benstead under Charles I.; but he would certainly not fail to dwell on
the authorities of Sir Edward Coke and Sir Matthew Hale. Yet these
eminent men, and especially the latter, aware that our law is mainly
built on adjudged precedent, and not daring to reject that which they
would not have themselves asserted, will be found to have rather
timidly exercised their judgment in the construction of this statute,
yielding a deference to former authority which we have transferred to
their own.
These observations are particularly applicable to that class of cases
so repugnant to the general understanding of mankind, and, I believe,
of most lawyers, wherein trifling insurrections for the purpose of
destroying brothels or meeting-houses have been held treasonable under
the clause of levying war. Nor does there seem any ground for the
defence which has been made for this construction, by taking a
distinction, that although a rising to effect a partial end by force
is only a riot, yet where a general purpose of the kind is in view it
becomes rebellion; and thus, though to pull down the enclosures in a
single manor be not treason against the king, yet to destroy all
enclosures throughout the kingdom would be an infringement of his
sovereign power. For, however solid this distinction may be, yet in
the class of cases to which I allude, this general purpose was neither
attempted to be made out in evidence, nor rendered probable by the
circumstances; nor was the distinction ever taken upon the several
trials. A few apprentices rose in London in the reign of Charles II.,
and destroyed some brothels.[237] A mob of watermen and others, at the
time of Sacheverell's impeachment, set on fire several dissenting
meeting-houses.[238] Everything like a formal attack on the
established government is so much excluded in these instances by the
very nature of the offence and the means of the offenders, that it is
impossible to withhold our reprobation from the original decision,
upon which, with too much respect for unreasonable and unjust
authority, the later cases have been established. These indeed still
continue to be cited as law; but it is much to be doubted whether a
conviction for treason will ever again be obtained, or even sought
for, under similar circumstances. One reason indeed for this, were
there no weight in any other, might suffice; the punishment of
tumultuous risings, attended with violence, has been rendered capital
by the riot act of George I. and other statutes; so that, in the
present state of the law, it is generally more advantageous for the
government to treat such an offence as felony than as treason.
_Statute of William III._--It might for a moment be doubted, upon the
statute of Edward VI., whether the two witnesses whom the act requires
must not depose to the same overt acts of treason. But, as this would
give an undue security to conspirators, so it is not necessarily
implied by the expression; nor would it be indeed the most
unwarrantable latitude that has been given to this branch of penal
law, to maintain that two witnesses to any distinct acts comprised in
the same indictment would satisfy the letter of this enactment. But a
more wholesome distinction appears to have been taken before the
revolution, and is established by the statute of William, that,
although different overt acts may be proved by two witnesses, they
must relate to the same species of treason, so that one witness to an
alleged act of compassing the king's death cannot be conjoined with
another deposing to an act of levying war, in order to make up the
required number.[239] As for the practice of courts of justice before
the restoration, it was so much at variance with all principles, that
few prisoners were allowed the benefit of this statute;[240]
succeeding judges fortunately deviated more from their predecessors in
the method of conducting trials than they have thought themselves at
liberty to do in laying down rules of law.
Nothing had brought so much disgrace on the councils of government and
on the administration of justice, nothing had more forcibly spoken the
necessity of a great change than the prosecutions for treason during
the latter years of Charles II., and in truth during the whole course
of our legal history. The statutes of Edward III. and Edward VI.,
almost set aside by sophistical constructions, required the
corroboration of some more explicit law; and some peculiar securities
were demanded for innocence against that conspiracy of the court with
the prosecutor, which is so much to be dreaded in all trials for
political crimes. Hence the attainders of Russell, Sidney, Cornish,
and Armstrong were reversed by the convention-parliament without
opposition; and men attached to liberty and justice, whether of the
whig or tory name, were anxious to prevent any future recurrence of
those iniquitous proceedings, by which the popular frenzy at one time,
the wickedness of the court at another, and in each instance with the
co-operation of a servile bench of judges, had sullied the honour of
English justice. A better tone of political sentiment had begun indeed
to prevail, and the spirit of the people must ever be a more effectual
security than the virtue of the judges; yet, even after the
revolution, if no unjust or illegal convictions in cases of treason
can be imputed to our tribunals, there was still not a little of that
rudeness towards the prisoner, and manifestation of a desire to
interpret all things to his prejudice, which had been more grossly
displayed by the bench under Charles II. The jacobites, against whom
the law now directed its terrors, as loudly complained of Treby and
Pollexfen, as the whigs had of Scroggs and Jefferies, and weighed the
convictions of Ashton and Anderton against those of Russell and
Sidney.[241]
Ashton was a gentleman, who, in company with Lord Preston, was seized
in endeavouring to go over to France with an invitation from the
jacobite party. The contemporary writers on that side, and some
historians who incline to it, have represented his conviction as
grounded upon insufficient, because only upon presumptive evidence. It
is true that in most of our earlier cases of treason, treasonable
facts have been directly proved; whereas it was left to the jury in
that of Ashton, whether they were satisfied of his acquaintance with
the contents of certain papers taken on his person. There does not
however seem to be any reason why presumptive inferences are to be
rejected in charges of treason, or why they should be drawn with more
hesitation than in other grave offences; and if this be admitted,
there can be no doubt that the evidence against Ashton was such as is
ordinarily reckoned conclusive. It is stronger than that offered for
the prosecution against O'Quigley at Maidstone in 1798, a case of the
closest resemblance; and yet I am not aware that the verdict in that
instance was thought open to censure. No judge however in modern times
would question, much less reply upon, the prisoner, as to material
points of his defence, as Holt and Pollexfen did in this trial; the
practice of a neighbouring kingdom, which, in our more advanced sense
of equity and candour, we are agreed to condemn.[242]
It is perhaps less easy to justify the conduct of Chief-Justice Treby
in the trial of Anderton for printing a treasonable pamphlet. The
testimony came very short of satisfactory proof, according to the
established rules of English law, though by no means such as men in
general would slight. It chiefly consisted of a comparison between the
characters of a printed work found concealed in his lodgings and
certain types belonging to his press; a comparison manifestly less
admissible than that of handwriting, which is always rejected, and
indeed totally inconsistent with the rigour of English proof. Besides
the common objections made to a comparison of hands, and which apply
more forcibly to printed characters, it is manifest that types cast in
the same font must always be exactly similar. But, on the other hand,
it seems unreasonable absolutely to exclude, as our courts have done,
the comparison of handwriting as inadmissible evidence; a rule which
is every day eluded by fresh rules, not much more rational in
themselves, which have been invented to get rid of its inconvenience.
There seems however much danger in the construction which draws
printed libels, unconnected with any conspiracy, within the pale of
treason, and especially the treason of compassing the king's death,
unless where they directly tended to his assassination. No later
authority can, as far as I remember, be adduced for the prosecution of
any libel as treasonable, under the statute of Edward III. But the
pamphlet for which Anderton was convicted was certainly full of the
most audacious jacobitism, and might perhaps fall, by no unfair
construction, within the charge of adhering to the king's enemies;
since no one could be more so than James, whose design of invading the
realm had been frequently avowed by himself.[243]
A bill for regulating trials upon charges of high treason passed the
Commons with slight resistance by the Crown lawyers in 1691.[244] The
Lords introduced a provision in their own favour, that upon the trial
of a peer in the court of the high steward, all such as were entitled
to vote should be regularly summoned; it having been the practice to
select twenty-three at the discretion of the Crown. Those who wished
to hinder the bill availed themselves of the jealousy which the
Commons in that age entertained of the upper house of parliament, and
persuaded them to disagree with this just and reasonable
amendment.[245] It fell to the ground therefore on this occasion; and
though more than once revived in subsequent sessions, the same
difference between the two houses continued to be insuperable.[246]
In the new parliament that met in 1695, Commons had the good sense to
recede from an irrational jealousy. Notwithstanding the reluctance of
the ministry, for which perhaps the very dangerous position of the
king's government furnishes an apology, this excellent statute was
enacted as an additional guarantee (in such bad times as might again
occur) to those who are prominent in their country's cause, against
the great danger of false accusers and iniquitous judges.[247] It
provides that all persons indicted for high treason shall have a copy
of their indictment delivered to them five days before their trial, a
period extended by a subsequent act to ten days, and a copy of the
panel of jurors two days before their trial; that they shall be
allowed to have their witnesses examined on oath, and to make their
defence by counsel. It clears up any doubt that could be pretended on
the statute of Edward VI., by requiring two witnesses, either both to
the same overt act, or the first to one, the second to another overt
act of the same treason (that is, the same kind of treason), unless
the party shall voluntarily confess the charge.[248] It limits
prosecutions for treason to the term of three years, except in the
case of an attempted assassination on the king. It includes the
contested provision for the trial of peers by all who have a right to
sit and vote in parliament. A later statute, 7 Anne, c. 21, which may
be mentioned here as the complement of the former, has added a
peculiar privilege to the accused, hardly less material than any of
the rest. Ten days before the trial, a list of the witnesses intended
to be brought for proving the indictment, with their professions and
place of abode, must be delivered to the prisoner, along with the copy
of the indictment. The operation of this clause was suspended till
after the death of the pretended Prince of Wales.
Notwithstanding a hasty remark of Burnet, that the design of this bill
seemed to be to make men as safe in all treasonable practices as
possible, it ought to be considered a valuable accession to our
constitutional law; and no part, I think, of either statute will be
reckoned inexpedient, when we reflect upon the history of all nations,
and more especially of our own. The history of all nations, and more
especially of our own, in the fresh recollection of those who took a
share in these acts, teaches us that false accusers are always
encouraged by a bad government, and may easily deceive a good one. A
prompt belief in the spies whom they perhaps necessarily employ, in
the voluntary informers who dress up probable falsehoods, is so
natural and constant in the offices of ministers, that the best are to
be heard with suspicion when they bring forward such testimony. One
instance, at least, had occurred since the revolution, of charges
unquestionably false in their specific details, preferred against men
of eminence by impostors who panted for the laurels of Oates and
Turberville.[249] And, as men who are accused of conspiracy against a
government are generally such as are beyond question disaffected to
it, the indiscriminating temper of the prejudging people, from whom
juries must be taken, is as much to be apprehended, when it happens to
be favourable to authority, as that of the government itself; and
requires as much the best securities, imperfect as the best are, which
prudence and patriotism can furnish to innocence. That the prisoner's
witnesses should be examined on oath will of course not be disputed,
since by a subsequent statute that strange and unjust anomaly in our
criminal law has been removed in all cases as well as in treason; but
the judges had sometimes not been ashamed to point out to the jury, in
derogation of the credit of those whom a prisoner called in his
behalf, that they were not speaking under the same sanction as those
for the Crown. It was not less reasonable that the defence should be
conducted by counsel; since that excuse which is often made for
denying the assistance of counsel on charges of felony, namely, the
moderation of prosecutors and the humanity of the bench, could never
be urged in those political accusations wherein the advocates for the
prosecution contend with all their strength for victory; and the
impartiality of the court is rather praised when it is found than
relied upon beforehand.[250] Nor does there lie any sufficient
objection even to that which many dislike, the furnishing a list of
the witnesses to the prisoner, when we set on the other side the
danger of taking away innocent lives by the testimony of suborned and
infamous men, and remember also that a guilty person can rarely be
ignorant of those who will bear witness against him; or if he could,
that he may always discover those who have been examined before the
grand jury, and that no others can in any case be called on the trial.
The subtlety of Crown lawyers in drawing indictments for treason, and
the willingness of judges to favour such prosecutions, have
considerably eluded the chief difficulties which the several statutes
appear to throw in their way. The government has at least had no
reason to complain that the construction of those enactments has been
too rigid. The overt acts laid in the indictment are expressed so
generally that they give sometimes little insight into the particular
circumstances to be adduced in evidence; and, though the act of
William is positive that no evidence shall be given of any overt act
not laid in the indictment, it has been held allowable, and is become
the constant practice, to bring forward such evidence, not as
substantive charges, but on the pretence of its tending to prove
certain other acts specially alleged. The disposition to extend a
constructive interpretation to the statute of Edward III. has
continued to increase; and was carried, especially by Chief-Justice
Eyre in the trials of 1794, to a length at which we lose sight
altogether of the plain meaning of words, and apparently much beyond
what Pemberton, or even Jefferies, had reached. In the vast mass of
circumstantial testimony which our modern trials for high treason
display, it is sometimes difficult to discern whether the great
principle of our law, requiring two witnesses to overt acts, has been
adhered to; for certainly it is not adhered to, unless such witnesses
depose to acts of the prisoner, from which an inference of his guilt
is immediately deducible.[251] There can be no doubt that state
prosecutions have long been conducted with an urbanity and exterior
moderation unknown to the age of the Stuarts, or even to that of
William; but this may by possibility be compatible with very partial
wrestling of the law, and the substitution of a sort of political
reasoning for that strict interpretation of penal statutes which the
subject has a right to demand. No confidence in the general integrity
of a government, much less in that of its lawyers, least of all any
belief in the guilt of an accused person, should beguile us to remit
that vigilance which is peculiarly required in such circumstances.[252]
For this vigilance, and indeed for almost all that keeps up in us,
permanently and effectually, the spirit of regard to liberty and the
public good, we must look to the unshackled and independent energies
of the press. In the reign of William III., and through the influence
of the popular principle in our constitution, this finally became
free. The licensing act, suffered to expire in 1679, was revived in
1685 for seven years. In 1692, it was continued till the end of the
session of 1693. Several attempts were afterwards made to renew its
operation, which the less courtly whigs combined with the tories and
jacobites to defeat.[253] Both parties indeed employed the press with
great diligence in this reign; but while one degenerated into
malignant calumny and misrepresentation, the signal victory of liberal
principles is manifestly due to the boldness and eloquence with which
they were promulgated. Even during the existence of a censorship, a
host of unlicensed publications, by the negligence or connivance of
the officers employed to seize them, bore witness to the inefficacy of
its restrictions. The bitterest invectives of jacobitism were
circulated in the first four years after the revolution.[254]
_Liberty of the press._--The liberty of the press consists, in a
strict sense, merely in an exemption from the superintendence of a
licenser. But it cannot be said to exist in any security, or
sufficiently for its principal ends, where discussions of a political
or religious nature, whether general or particular, are restrained by
too narrow and severe limitations. The law of libel has always been
indefinite; an evil probably beyond any complete remedy, but which
evidently renders the liberty of free discussion rather more
precarious in its exercise than might be wished. It appears to have
been the received doctrine in Westminster Hall before the revolution,
that no man might publish a writing reflecting on the government, nor
upon the character, or even capacity and fitness, of any one employed
in it. Nothing having passed to change the law, the law remained as
before. Hence in the case of Tutchin, it is laid down by Holt, that to
possess the people with an ill opinion of the government, that is, of
the ministry, is a libel. And the attorney-general, in his speech for
the prosecution, urges that there can be no reflection on those that
are in office under her majesty, but it must cast some reflection on
the queen who employs them. Yet in this case the censure upon the
administration, in the passages selected for prosecution, was merely
general, and without reference to any person, upon which the counsel
for Tutchin vainly relied.[255]
It is manifest that such a doctrine was irreconcilable with the
interests of any party out of power, whose best hope to regain it is
commonly by prepossessing the nation with a bad opinion of their
adversaries. Nor would it have been possible for any ministry to stop
the torrent of a free press, under the secret guidance of a powerful
faction, by a few indictments for libel. They found it generally more
expedient and more agreeable to borrow weapons from the same armoury,
and retaliate with unsparing invective and calumny. This was first
practised (first, I mean, with the avowed countenance of government)
by Swift in the _Examiner_, and some of his other writings. And both
parties soon went such lengths in this warfare that it became tacitly
understood that the public characters of statesmen, and the measures
of administration, are the fair topics of pretty severe attacks. Less
than this indeed would not have contented the political temper of the
nation, gradually and without intermission becoming more democratical,
and more capable, as well as more accustomed, to judge of its general
interests, and of those to whom they were intrusted. The just limit
between political and private censure has been far better drawn in
these later times, licentious as we still may justly deem the press,
than in an age when courts of justice had not deigned to acknowledge,
as they do at present, its theoretical liberty. No writer, except of
the most broken reputation, would venture at this day on the malignant
calumnies of Swift.
_Law of libel._--Meanwhile the judges naturally adhered to their
established doctrine; and, in prosecutions for political libels, were
very little inclined to favour what they deemed the presumption, if
not the licentiousness, of the press. They advanced a little farther
than their predecessors; and, contrary to the practice both before and
after the revolution, laid it down at length as an absolute principle,
that falsehood, though always alleged in the indictment, was not
essential to the guilt of the libel; refusing to admit its truth to be
pleaded, or given in evidence, or even urged by way of mitigation of
punishment.[256] But as the defendant could only be convicted by the
verdict of a jury, and jurors both partook of the general sentiment in
favour of free discussion, and might in certain cases have acquired
some prepossessions as to the real truth of the supposed libel, which
the court's refusal to enter upon it could not remove, they were often
reluctant to find a verdict of guilty; and hence arose by degrees a
sort of contention which sometimes showed itself upon trials, and
divided both the profession of the law and the general public. The
judges and lawyers, for the most part, maintained that the province of
the jury was only to determine the fact of publication; and also
whether what are called the innuendoes were properly filled up, that
is, whether the libel meant that which it was alleged in the
indictment to mean, not whether such meaning were criminal or
innocent, a question of law which the court were exclusively competent
to decide. That the jury might acquit at their pleasure was
undeniable; but it was asserted that they would do so in violation of
their oaths and duty, if they should reject the opinion of the judge
by whom they were to be guided as to the general law. Others of great
name in our jurisprudence, and the majority of the public at large,
conceiving that this would throw the liberty of the press altogether
into the hands of the judges, maintained that the jury had a strict
right to take the whole matter into their consideration, and determine
the defendant's criminality or innocence according to the nature and
circumstances of the publication. This controversy, which perhaps
hardly arose within the period to which the present work relates, was
settled by Mr. Fox's libel bill in 1792. It declares the right of the
jury to find a general verdict upon the whole matter; and though, from
causes easy to explain, it is not drawn in the most intelligible and
consistent manner, was certainly designed to turn the defendant's
intention, as it might be laudable or innocent, seditious or
malignant, into a matter of fact for their enquiry and decision.
_Religious toleration._--The revolution is justly entitled to honour
as the era of religious, in a far greater degree than of civil
liberty; the privileges of conscience having had no earlier magna
charta and petition of right whereto they could appeal against
encroachment. Civil, indeed, and religious liberty had appeared, not
as twin sisters and co-heirs, but rather in jealous and selfish
rivalry; it was in despite of the law, it was through infringement of
the constitution, by the court's connivance, by the dispensing
prerogative, by the declarations of indulgence under Charles and
James, that some respite had been obtained from the tyranny which
those who proclaimed their attachment to civil rights had always
exercised against one class of separatists, and frequently against
another.
At the time when the test law was enacted, chiefly with a view against
popery, but seriously affecting the protestant nonconformists, it was
the intention of the House of Commons to afford relief to the latter
by relaxing in some measure the strictness of the act of uniformity in
favour of such ministers as might be induced to conform, by granting
an indulgence of worship to those who should persist in their
separation. This bill however dropped in that session. Several more
attempts at an union were devised by worthy men of both parties in
that reign, but with no success. It was the policy of the court to
withstand a comprehension of dissenters; nor would the bishops admit
of any concession worth the others' acceptance. The high-church party
would not endure any mention of indulgence.[257] In the parliament of
1680, a bill to relieve protestant dissenters from the penalties of
the 35th of Elizabeth, the most severe act in force against them,
having passed both houses, was lost off the table of the House of
Lords, at the moment that the king came to give his assent; an
artifice by which he evaded the odium of an explicit refusal.[258]
Meanwhile the nonconforming ministers, and in many cases their
followers, experienced a harassing persecution under the various penal
laws that oppressed them; the judges, especially in the latter part of
this reign, when some good magistrates were gone, and still more the
justices of the peace, among whom a high-church ardour was prevalent,
crowding the gaols with the pious confessors of puritanism.[259] Under
so rigorous an administration of statute law, it was not unnatural to
take the shelter offered by the declaration of indulgence; but the
dissenters never departed from their ancient abhorrence of popery and
arbitrary power, and embraced the terms of reconciliation and alliance
which the church, in its distress, held out to them. A scheme of
comprehension was framed under the auspices of Archbishop Sancroft
before the revolution. Upon the completion of the new settlement it
was determined, with the apparent concurrence of the church, to grant
an indulgence to separate conventicles, and at the same time, by
enlarging the terms of conformity, to bring back those whose
differences were not irreconcilable within the pale of the Anglican
communion.
The act of toleration was passed with little difficulty, though not
without the murmurs of the bigoted churchmen.[260] It exempts from the
penalties of existing statutes against separate conventicles, or
absence from the established worship, such as should take the oath of
allegiance, and subscribe the declaration against popery, and such
ministers of separate congregations as should subscribe the
thirty-nine articles of the church of England except three, and part
of a fourth. It gives also an indulgence to quakers without this
condition. Meeting-houses are required to be registered, and are
protected from insult by a penalty. No part of this toleration is
extended to papists or to such as deny the Trinity. We may justly deem
this act a very scanty measure of religious liberty; yet it proved
more effectual through the lenient and liberal policy of the
eighteenth century; the subscription to articles of faith, which soon
became as obnoxious as that to matters of a more indifferent nature,
having been practically dispensed with, though such a genuine
toleration as Christianity and philosophy alike demand, had no place
in our statute-book before the reign of George III.
It was found more impracticable to overcome the prejudices which stood
against any enlargement of the basis of the English church. The bill
of comprehension, though nearly such as had been intended by the
primate, and conformable to the plans so often in vain devised by the
most wise and moderate churchmen, met with a very cold reception.
Those among the clergy who disliked the new settlement of the Crown
(and they were by far the greater part), played upon the ignorance and
apprehensions of the gentry. The king's suggestion in a speech from
the throne, that means should be found to render all protestants
capable of serving him in Ireland, as it looked towards a repeal or
modification of the test act, gave offence to the zealous
churchmen.[261] A clause proposed in the bill for changing the oaths
of supremacy and allegiance, in order to take away the necessity of
receiving the sacrament in the church as a qualification for office,
was rejected by a great majority of the Lords, twelve whig peers
protesting.[262] Though the bill of comprehension proposed to
parliament went no farther than to leave a few scrupled ceremonies at
discretion, and to admit presbyterian ministers into the church
without pronouncing on the invalidity of their former ordination, it
was mutilated in passing through the upper house; and the Commons,
after entertaining it for a time, substituted an address to the king,
that he would call the house of convocation "to be advised with in
ecclesiastical matters."[263] It was, of course, necessary to follow
this recommendation. But the lower house of convocation, as might be
foreseen, threw every obstacle in the way of the king's enlarged
policy. They chose a man as their prolocutor who had been forward in
the worst conduct of the university of Oxford. They displayed in
everything a factious temper, which held the very names of concession
and conciliation in abhorrence. Meanwhile a commission of divines,
appointed under the great seal, had made a revision of the liturgy, in
order to eradicate everything which could give a plausible ground of
offence, as well as to render the service more perfect. Those of the
high-church faction had soon seceded from this commission; and its
deliberations were doubtless the more honest and rational for their
absence. But, as the complacence of parliament towards ecclesiastical
authority had shown that no legislative measure could be forced
against the resistance of the lower house of convocation, it was not
thought expedient to lay before that synod of insolent priests the
revised liturgy, which they would have employed as an engine of
calumny against the bishops and the Crown. The scheme of
comprehension, therefore, fell absolutely and finally to the
ground.[264]
_Schism of the non-jurors._--A similar relaxation of the terms of
conformity would, in the reign of Elizabeth, or even at the time of
the Savoy conferences, have brought back so large a majority of
dissenters that the separation of the remainder could not have
afforded any colour of alarm to the most jealous dignitary. Even now
it is said that two-thirds of the nonconformists would have embraced
the terms of reunion. But the motives of dissent were already somewhat
changed, and had come to turn less on the petty scruples of the elder
puritans and on the differences in ecclesiastical discipline, than on
a dislike to all subscriptions of faith and compulsory uniformity. The
dissenting ministers, accustomed to independence, and finding not
unfrequently in the contributions of their disciples a better
maintenance than court favour and private patronage have left for
diligence and piety in the establishment, do not seem to have much
regretted the fate of this measure. None of their friends, in the most
favourable times, have ever made an attempt to renew it. There are
indeed serious reasons why the boundaries of religious communion
should be as widely extended as is consistent with its end and nature;
and among these the hardship and detriment of excluding conscientious
men from the ministry is not the least. Nor is it less evident that
from time to time, according to the progress of knowledge and reason,
to remove defects and errors from the public service of the church,
even if they have not led to scandal or separation, is the bounden
duty of its governors. But none of these considerations press much on
the minds of statesmen; and it was not to be expected that any
administration should prosecute a religious reform for its own sake,
at the hazard of that tranquillity and exterior unity which is in
general the sole end for which they would deem such a reform worth
attempting. Nor could it be dissembled that, so long as the endowments
of a national church are supposed to require a sort of politic
organisation within the commonwealth, and a busy spirit of faction
for their security, it will be convenient for the governors of the
state, whenever they find this spirit adverse to them, as it was at
the revolution, to preserve the strength of the dissenting sects as a
counterpoise to that dangerous influence which, in protestant
churches, as well as that of Rome, has sometimes set up the interest
of one order against that of the community. And though the church of
England made a high vaunt of her loyalty, yet, as Lord Shrewsbury told
William of the tories in general, he must remember that he was not
their king; of which indeed he had abundant experience.
A still more material reason against any alteration in the public
liturgy and ceremonial religion at that feverish crisis, unless with a
much more decided concurrence of the nation than could be obtained,
was the risk of nourishing the schism of the non-jurors. These men
went off from the church on grounds merely political, or at most on
the pretence that the civil power was incompetent to deprive bishops
of their ecclesiastical jurisdiction; to which none among the laity,
who did not adopt the same political tenets, were likely to pay
attention. But the established liturgy was, as it is at present, in
the eyes of the great majority, the distinguishing mark of the
Anglican church, far more indeed than episcopal government, whereof so
little is known by the mass of the people that its abolition would
make no perceptible difference in their religion. Any change, though
for the better, would offend those prejudices of education and habit,
which it requires such a revolutionary commotion of the public mind as
the sixteenth century witnessed, to subdue, and might fill the
jacobite conventicles with adherents to the old church. It was already
the policy of the non-juring clergy to hold themselves up in this
respectable light, and to treat the Tillotsons and Burnets as equally
schismatic in discipline and unsound in theology. Fortunately,
however, they fell into the snare which the established church had
avoided; and deviating, at least in their writings, from the received
standard of Anglican orthodoxy, into what the people saw with most
jealousy, a sort of approximation to the church of Rome, gave their
opponents an advantage in controversy, and drew farther from that part
of the clergy who did not much dislike their political creed. They
were equally injudicious and neglectful of the signs of the times,
when they promulgated such extravagant assertions of sacerdotal power
as could not stand with the regal supremacy, or any subordination to
the state. It was plain, from the writings of Leslie and other
leaders of their party, that the mere restoration of the house of
Stuart would not content them, without undoing all that had been
enacted as to the church from the time of Henry VIII.; and thus the
charge of innovation came evidently home to themselves.[265]
The convention parliament would have acted a truly politic, as well as
magnanimous, part in extending this boon, or rather this right, of
religious liberty to the members of that unfortunate church, for whose
sake the late king had lost his throne. It would have displayed to
mankind that James had fallen, not as a catholic, nor for seeking to
bestow toleration on catholics, but as a violator of the constitution.
William, in all things superior to his subjects, knew that temporal,
and especially military fidelity, would be in almost every instance
proof against the seductions of bigotry. The Dutch armies have always
been in a great measure composed of catholics; and many of that
profession served under him in the invasion of England. His own
judgment for the repeal of the penal laws had been declared even in
the reign of James. The danger, if any, was now immensely diminished;
and it appears in the highest degree probable that a genuine
toleration of their worship, with no condition but the oath of
allegiance, would have brought over the majority of that church to the
protestant succession, so far at least as to engage in no schemes
inimical to it. The wiser catholics would have perceived that, under a
king of their own faith, or but suspected of an attachment to it, they
must continue the objects of perpetual distrust to a protestant
nation. They would have learned that conspiracy and jesuitical
intrigue could but keep alive calumnious imputations, and diminish the
respect which a generous people would naturally pay to their sincerity
and their misfortune. Had the legislators of that age taken a still
larger sweep, and abolished at once those tests and disabilities,
which, once necessary bulwarks against an insidious court, were no
longer demanded in the more republican model of our government, the
jacobite cause would have suffered, I believe, a more deadly wound
than penal statutes and double taxation were able to inflict. But this
was beyond the philosophers, how much beyond the statesmen, of the
time!
_Laws against Roman catholics._--The tories, in their malignant hatred
of our illustrious monarch, turned his connivance at popery into a
theme of reproach.[266] It was believed, and probably with truth, that
he had made to his catholic allies promises of relaxing the penal
laws; and the jacobite intriguers had the mortification to find that
William had his party at Rome, as well as her exiled confessor of St.
Germains. After the peace of Ryswick many priests came over, and
showed themselves with such incautious publicity as alarmed the
bigotry of the House of Commons, and produced the disgraceful act of
1700 against the growth of popery.[267] The admitted aim of this
statute was to expel the catholic proprietors of land, comprising many
very ancient and wealthy families, by rendering it necessary for them
to sell their estates. It first offers a reward of £100 to any
informer against a priest exercising his functions, and adjudges the
penalty of perpetual imprisonment. It requires every person educated
in the popish religion, or professing the same, within six months
after he shall attain the age of eighteen years, to take the oaths of
allegiance and supremacy, and subscribe the declaration set down in
the act of Charles II. against transubstantiation and the worship of
saints; in default of which he is incapacitated, not only to purchase,
but to inherit or take lands under any devise or limitation. The next
of kin being a protestant shall enjoy such lands during his
life.[268] So unjust, so unprovoked a persecution is the disgrace of
that parliament. But the spirit of liberty and tolerance was too
strong for the tyranny of the law; and this statute was not executed
according to its purpose. The catholic land-holders neither renounced
their religion, nor abandoned their inheritances. The judges put such
constructions upon the clause of forfeiture as eluded its efficacy;
and, I believe, there were scarce any instances of a loss of property
under this law. It has been said, and I doubt not with justice, that
the catholic gentry, during the greater part of the eighteenth
century, were as a separated and half proscribed class among their
equals, their civil exclusion hanging over them in the intercourse of
general society;[269] but their notorious, though not unnatural,
disaffection to the reigning family will account for much of this, and
their religion was undoubtedly exercised with little disguise or
apprehension. The laws were perhaps not much less severe and
sanguinary than those which oppressed the protestants of France; but,
in their actual administration, what a contrast between the government
of George II. and Louis XV., between the gentleness of an English
court of king's bench, and the ferocity of the parliaments of Aix and
Thoulouse!
_Act of settlement._--The immediate settlement of the Crown at the
revolution extended only to the descendants of Anne and of William.
The former was at that time pregnant, and became in a few months the
mother of a son. Nothing therefore urged the convention-parliament to
go any farther in limiting the succession. But the king, in order to
secure the elector of Hanover to the grand alliance, was desirous to
settle the reversion of the Crown on his wife the Princess Sophia and
her posterity. A provision to this effect was inserted in the bill of
rights by the House of Lords. But the Commons rejected the amendment
with little opposition; not, as Burnet idly insinuates through the
secret wish of a republican party (which never existed, or had no
influence) to let the monarchy die a natural death, but from a just
sense that the provision was unnecessary and might become
inexpedient.[270] During the life of the young Duke of Gloucester the
course of succession appeared clear. But upon his untimely death in
1700, the manifest improbability that the limitations already
established could subsist beyond the lives of the king and Princess of
Denmark made it highly convenient to preclude intrigue, and cut off
the hopes of the jacobites, by a new settlement of the Crown on a
protestant line of princes. Though the choice was truly free in the
hands of parliament, and no pretext of absolute right could be
advanced on any side, there was no question that the Princess Sophia
was the fittest object of the nation's preference. She was indeed very
far removed from any hereditary title. Besides the pretended Prince of
Wales, and his sister, whose legitimacy no one disputed, there stood
in her way the Duchess of Savoy, daughter of Henrietta Duchess of
Orleans, and several of the Palatine family. These last had abjured
the reformed faith, of which their ancestors had been the strenuous
assertors; but it seemed not improbable that some one might return to
it; and, if all hereditary right of the ancient English royal line,
the descendant of Henry VII., had not been extinguished, it would have
been necessary to secure the succession of any prince, who should
profess the protestant religion at the time when the existing
limitations should come to an end. Nor indeed, on the supposition that
the next heir had a right to enjoy the Crown, would the act of
settlement have been required.[271] According to the tenor and
intention of this statute, all prior claims of inheritance, save that
of the issue of King William and the Princess Anne, being set aside
and annulled, the Princess Sophia became the source of a new royal
line. The throne of England and Ireland, by virtue of the paramount
will of parliament, stands entailed upon the heirs of her body, being
protestants. In them the right is as truly hereditary as it ever was
in the Plantagenets or the Tudors. But they derive it not from those
ancient families. The blood indeed of Cerdic and of the Conqueror
flows in the veins of his present majesty. Our Edwards and Henries
illustrate the almost unrivalled splendour and antiquity of the house
of Brunswick. But they have transmitted no more right to the
allegiance of England than Boniface of Este or Henry the Lion. That
rests wholly on the act of settlement, and resolves itself into the
sovereignty of the legislature. We have therefore an abundant security
that no prince of the house of Brunswick will ever countenance the
silly theories of imprescriptible right, which flattery and
superstition seem still to render current in other countries. He would
brand his own brow with the names of upstart and usurper. For the
history of the revolution, and of that change in the succession which
ensued upon it, will for ages to come be fresh and familiar as the
recollections of yesterday. And if the people's choice be, as surely
it is, the primary foundation of magistracy, it is perhaps more
honourable to be nearer the source than to deduce a title from some
obscure chieftain, through a long roll of tyrants and idiots.
The majority of that House of Commons which passed the bill of
settlement consisted of those who having long opposed the
administration of William, though with very different principles both
as to the succession of the Crown and its prerogative, were now often
called by the general name of tories. Some, no doubt, of these were
adverse to a measure which precluded the restoration of the house of
Stuart, even on the contingency that its heir might embrace the
protestant religion. But this party could not show itself very openly;
and Harley, the new leader of the tories, zealously supported the
entail of the Crown on the Princess Sophia. But it was determined to
accompany this settlement with additional securities for the subject's
liberty. The bill of rights was reckoned hasty and defective; some
matters of great importance had been omitted, and in the twelve years
which had since elapsed, new abuses had called for new remedies. Eight
articles were therefore inserted in the act of settlement, to take
effect only from the commencement of the new limitation to the house
of Hanover. Some of them, as will appear, sprung from a natural
jealousy of this unknown and foreign line; some should strictly not
have been postponed so long; but it is necessary to be content with
what it is practicable to obtain. These articles are the following:--
That whosoever shall hereafter come to the possession of this Crown,
shall join in communion with the church of England as by law
established.
That in case the Crown and imperial dignity of this realm shall
hereafter come to any person, not being a native of this kingdom of
England, this nation be not obliged to engage in any war for the
defence of any dominions or territories which do not belong to the
Crown of England, without the consent of parliament.
That no person who shall hereafter come to the possession of this
Crown, shall go out of the dominions of England, Scotland, or Ireland,
without consent of parliament.
That from and after the time that the further limitation by this act
shall take effect, all matters and things relating to the well
governing of this kingdom, which are properly cognisable in the privy
council by the laws and customs of this realm, shall be transacted
there, and all resolutions taken thereupon shall be signed by such of
the privy council as shall advise and consent to the same.
That, after the said limitation shall take effect as aforesaid, no
person born out of the kingdoms of England, Scotland, or Ireland, or
the dominions thereunto belonging (although he be naturalised or made
a denizen--except such as are born of English parents), shall be
capable to be of the privy council, or a member of either house of
parliament, or to enjoy any office or place of trust, either civil or
military, or to have any grant of lands, tenements, or hereditaments,
from the Crown, to himself, or to any other or others in trust for
him.
That no person who has an office or place of profit under the king, or
receives a pension from the Crown, shall be capable of serving as a
member of the House of Commons.
That, after the said limitation shall take effect as aforesaid,
judges' commissions be made quamdiu se bene gesserint, and their
salaries ascertained and established; but, upon the address of both
houses of parliament, it may be lawful to remove them.
That no pardon under the great seal of England be pleadable to an
impeachment by the Commons in parliament.[272]
The first of these provisions was well adapted to obviate the jealousy
which the succession of a new dynasty, bred in a protestant church not
altogether agreeing with our own, might excite in our susceptible
nation. A similar apprehension of foreign government produced the
second article, which so far limits the royal prerogative that any
minister who could be proved to have advised or abetted a declaration
of war in the specified contingency would be criminally responsible to
parliament.[273] The third article was repealed very soon after the
accession of George I., whose frequent journeys to Hanover were an
abuse of the graciousness with which the parliament consented to annul
the restriction.[274]
_Privy council superseded by a cabinet._--A very remarkable alteration
that had been silently wrought in the course of the executive
government, gave rise to the fourth of the remedial articles in the
act of settlement. According to the original constitution of our
monarchy, the king had his privy council composed of the great
officers of state, and of such others as he should summon to it, bound
by an oath of fidelity and secrecy, by whom all affairs of weight,
whether as to domestic or exterior policy, were debated for the most
part in his presence, and determined, subordinately of course to his
pleasure, by the vote of the major part. It could not happen but that
some counsellors more eminent than the rest should form juntos or
cabals, for more close and private management, or be selected as more
confidential advisers of their sovereign; and the very name of a
cabinet council, as distinguished from the large body, may be found as
far back as the reign of Charles I. But the resolutions of the Crown,
whether as to foreign alliances or the issuing of proclamations and
orders at home, or any other overt act of government, were not finally
taken without the deliberation and assent of that body whom the law
recognised as its sworn and notorious counsellors. This was first
broken in upon after the restoration, and especially after the fall of
Clarendon, a strenuous assertor of the rights and dignity of the privy
council. "The king," as he complains, "had in his nature so little
reverence and esteem for antiquity, and did in truth so much contemn
old orders, forms, and institutions, that the objection of novelty
rather advanced than obstructed any proposition."[275] He wanted to be
absolute on the French plan, for which both he and his brother, as the
same historian tells us, had a great predilection, rather than obtain
a power little less arbitrary, so far at least as private rights were
concerned, on the system of his three predecessors. The delays and the
decencies of a regular council, the continual hesitation of lawyers,
were not suited to his temper, his talents, or his designs. And it
must indeed be admitted that the privy council, even as it was then
constituted, was too numerous for the practical administration of
supreme power. Thus by degrees it became usual for the ministry or
cabinet to obtain the king's final approbation of their measures,
before they were laid, for a merely formal ratification, before the
council. It was one object of Sir William Temple's short-lived scheme
in 1679 to bring back the ancient course; the king pledging himself on
the formation of his new privy council to act in all things by its
advice.
_Exclusion of placemen and pensioners from parliament._--During the
reign of William, this distinction of the cabinet from the privy
council, and the exclusion of the latter from all business of state
became more fully established.[276] This however produced a serious
consequence as to the responsibility of the advisers of the Crown; and
at the very time when the controlling and chastising power of
parliament was most effectually recognised, it was silently eluded by
the concealment in which the objects of its enquiry could wrap
themselves. Thus, in the instance of a treaty which the House of
Commons might deem mischievous and dishonourable, the chancellor
setting the great seal to it would of course be responsible; but it is
not so evident that the first lord of the treasury, or others more
immediately advising the Crown on the course of foreign policy, could
be liable to impeachment with any prospect of success, for an act in
which their participation could not be legally proved. I do not mean
that evidence may not possibly be obtained which would affect the
leaders of a cabinet, as in the instances of Oxford and Bolingbroke;
but that, the cabinet itself having no legal existence, and its
members being surely not amenable to punishment in their simple
capacity of privy counsellors, which they generally share, in modern
times, with a great number even of their adversaries, there is no
tangible character to which responsibility is attached; nothing,
except a signature or the setting of a seal, from which a bad minister
need entertain any further apprehension than that of losing his post
and reputation.[277] It may be that no absolute corrective is
practicable for this apparent deficiency in our constitutional
security; but it is expedient to keep it well in mind, because all
ministers speak loudly of their responsibility, and are apt, upon
faith of this imaginary guarantee, to obtain a previous confidence
from parliament which they may in fact abuse with impunity. For should
the bad success or detected guilt of their measures raise a popular
cry against them, and censure or penalty be demanded by their
opponents, they will infallibly shroud their persons in the dark
recesses of the cabinet, and employ every art to shift off the burthen
of individual liability.
William III., from the reservedness of his disposition as well as from
the great superiority of his capacity for affairs to any of our former
kings, was far less guided by any responsible counsellors than the
spirit of our constitution requires. In the business of the partition
treaty, which, whether rightly or otherwise, the House of Commons
reckoned highly injurious to the public interest, he had not even
consulted his cabinet; nor could any minister, except the Earl of
Portland and Lord Somers, be proved to have had a concern in the
transaction; for, though the house impeached Lord Orford and Lord
Halifax, they were not in fact any farther parties to it than by being
in the secret, and the former had shown his usual intractability by
objecting to the whole measure. This was undoubtedly such a departure
from sound constitutional usage as left parliament no control over the
executive administration. It was endeavoured to restore the ancient
principle by this provision in the act of settlement, that, after the
accession of the house of Hanover, all resolutions as to government
should be debated in the privy council, and signed by those present.
But, whether it were that real objections were found to stand in the
way of this article, or that ministers shrunk back from so definite a
responsibility, they procured its repeal a very few years
afterwards.[278] The plans of government are discussed and determined
in a cabinet council, forming indeed part of the larger body, but
unknown to the law by any distinct character or special appointment. I
conceive, though I have not the means of tracing the matter clearly,
that this change has prodigiously augmented the direct authority of
the secretaries of state, especially as to the interior department,
who communicate the king's pleasure in the first instance to
subordinate officers and magistrates, in cases which, down at least to
the time of Charles I., would have been determined in council. But
proclamations and orders still emanate, as the law requires, from the
privy council; and on some rare occasions, even of late years, matters
of domestic policy have been referred to their advice. It is generally
understood, however, that no counsellor is to attend, except when
summoned;[279] so that, unnecessarily numerous as the council has
become, in order to gratify vanity by a titular honour, these special
meetings consist only of a few persons besides the actual ministers of
the cabinet, and give the latter no apprehension of a formidable
resistance. Yet there can be no reasonable doubt that every counsellor
is as much answerable for the measures adopted by his consent, and
especially when ratified by his signature, as those who bear the name
of ministers, and who have generally determined upon them before he is
summoned.
The experience of William's partiality to Bentinck and Keppel, in the
latter instance not very consistent with the good sense and dignity of
his character, led to a strong measure of precaution against the
probable influence of foreigners under the new dynasty; the exclusion
of all persons not born within the dominions of the British Crown from
every office of civil and military trust, and from both houses of
parliament. No other country, as far as I recollect, has adopted so
sweeping a disqualification; and it must, I think, be admitted that it
goes a greater length than liberal policy can be said to warrant. But
the narrow prejudices of George I. were well restrained by this
provision from gratifying his corrupt and servile German favourites
with lucrative offices.[280]
The next article is of far more importance; and would, had it
continued in force, have perpetuated that struggle between the
different parts of the legislature, especially the Crown and House of
Commons, which the new limitations of the monarchy were intended to
annihilate. The baneful system of rendering the parliament subservient
to the administration, either by offices and pensions held at
pleasure, or by more clandestine corruption, had not ceased with the
house of Stuart. William, not long after his accession, fell into the
worst part of this management, which it was most difficult to prevent;
and, according to the practice of Charles's reign, induced by secret
bribes the leaders of parliamentary opposition to betray their cause
on particular questions. The tory patriot, Sir Christopher Musgrave,
trod in the steps of the whig patriot, Sir Thomas Lee. A large
expenditure appeared every year, under the head of secret service
money; which was pretty well known, and sometimes proved, to be
disposed of, in great part, among the members of both houses.[281] No
check was put on the number or quality of placemen in the lower
house. New offices were continually created, and at unreasonable
salaries. Those who desired to see a regard to virtue and liberty in
the parliament of England could not be insensible to the enormous
mischief of this influence. If some apology might be offered for it in
the precarious state of the revolution government, this did not take
away the possibility of future danger, when the monarchy should have
regained its usual stability. But in seeking for a remedy against the
peculiar evil of the times, the party in opposition to the court
during this reign, whose efforts at reformation were too frequently
misdirected, either through faction or some sinister regards towards
the deposed family, went into the preposterous extremity of banishing
all servants of the Crown from the House of Commons. Whether the bill
for free and impartial proceedings in parliament, which was rejected
by a very small majority of the House of Lords in 1693, and having in
the next session passed through both houses, met with the king's
negative, to the great disappointment and displeasure of the Commons,
was of this general nature, or excluded only certain specified
officers of the Crown, I am not able to determine; though the prudence
and expediency of William's refusal must depend entirely upon that
question.[282] But in the act of settlement, the clause is quite
without exception; and, if it had ever taken effect, no minister could
have had a seat in the House of Commons, to bring forward, explain, or
defend the measures of the executive government. Such a separation and
want of intelligence between the Crown and parliament must either have
destroyed the one, or degraded the other. The House of Commons would
either, in jealousy and passion, have armed the strength of the people
to subvert the monarchy, or, losing that effective control over the
appointment of ministers, which has sometimes gone near to their
nomination, would have fallen almost into the condition of those
states-general of ancient kingdoms, which have met only to be cajoled
into subsidies, and give a passive consent to the propositions of the
court. It is one of the greatest safeguards of our liberty, that
eloquent and ambitious men, such as aspire to guide the councils of
the Crown, are from habit and use so connected with the houses of
parliament, and derive from them so much of their renown and
influence, that they lie under no temptation, nor could without
insanity be prevailed upon, to diminish the authority and privileges
of that assembly. No English statesman, since the revolution, can be
liable to the very slightest suspicion of an aim, or even a wish, to
establish absolute monarchy on the ruins of our constitution. Whatever
else has been done, or designed to be done amiss, the rights of
parliament have been out of danger. They have, whenever a man of
powerful mind shall direct the cabinet, and none else can possibly be
formidable, the strong security of his own interest, which no such man
will desire to build on the caprice and intrigue of a court. And, as
this immediate connection of the advisers of the Crown with the House
of Commons, so that they are, and ever profess themselves, as truly
the servants of one as of the other, is a pledge for their loyalty to
the entire legislature, as well as to their sovereign (I mean, of
course, as to the fundamental principles of our constitution), so has
it preserved for the Commons their preponderating share in the
executive administration, and elevated them in the eyes of foreign
nations, till the monarchy itself has fallen comparatively into shade.
The pulse of Europe beats according to the tone of our parliament; the
counsels of our kings are there revealed, and by that kind of previous
sanction which it has been customary to obtain, become, as it were,
the resolutions of a senate; and we enjoy the individual pride and
dignity which belong to republicans, with the steadiness and
tranquillity which the supremacy of a single person has been supposed
peculiarly to bestow.
But, if the chief ministers of the Crown are indispensably to be
present in one or other house of parliament, it by no means follows
that the doors should be thrown open to all those subaltern retainers,
who, too low to have had any participation in the measures of
government, come merely to earn their salaries by a sure and silent
vote. Unless some limitation could be put on the number of such
officers, they might become the majority of every parliament,
especially if its duration were indefinite or very long. It was always
the popular endeavour of the opposition, or, as it was usually
denominated, the country party, to reduce the number of these
dependants; and as constantly the whole strength of the court was
exerted to keep them up. William, in truth, from his own errors, and
from the disadvantage of the times, would not venture to confide in an
unbiassed parliament. On the formation, however, of a new board of
revenue, in 1694, for managing the stamp-duties, its members were
incapacitated from sitting in the House of Commons.[283] This, I
believe, is the first instance of exclusion on account of employment;
and a similar act was obtained in 1699, extending this disability to
the commissioners and some other officers of excise.[284] But when the
absolute exclusion of all civil and military officers by the act of
settlement was found, on cool reflection, too impracticable to be
maintained, and a revision of that article took place in the year
1706, the House of Commons were still determined to preserve at least
the principle of limitation, as to the number of placemen within their
walls. They gave way indeed to the other house in a considerable
degree, receding, with some unwillingness, from a clause specifying
expressly the description of offices which should not create a
disqualification, and consenting to an entire repeal of the original
article.[285] But they established two provisions of great importance,
which still continue the great securities against an overwhelming
influence: first, that every member of the House of Commons accepting
an office under the Crown, except a higher commission in the army,
shall vacate his seat, and a new writ shall issue; secondly, that no
person holding an office created since the 25th of October 1705, shall
be capable of being elected or re-elected at all. They excluded at the
same time all such as held pensions during the pleasure of the Crown;
and, to check the multiplication of placemen, enacted, that no greater
number of commissioners should be appointed to execute any office than
had been employed in its execution at some time before that
parliament.[286] These restrictions ought to be rigorously and
jealously maintained, and to receive a construction, in doubtful
cases, according to their constitutional spirit; not as if they were
of a penal nature towards individuals, an absurdity in which the
careless and indulgent temper of modern times might sometimes
acquiesce.
_Independence of judges._--It had been the practice of the Stuarts,
especially in the last years of their dynasty, to dismiss judges,
without seeking any other pretence, who showed any disposition to
thwart government in political prosecutions. The general behaviour of
the bench had covered it with infamy. Though the real security for an
honest court of justice must be found in their responsibility to
parliament and to public opinion, it was evident that their tenure in
office must, in the first place, cease to be precarious, and their
integrity rescued from the severe trial of forfeiting the emoluments
upon which they subsisted. In the debates previous to the declaration
of rights, we find that several speakers insisted on making the
judges' commissions _quamdiu se bene gesserint_, that is, during life
or good behaviour, instead of _durante placito_, at the discretion of
the Crown. The former, indeed, is said to have been the ancient course
till the reign of James I. But this was omitted in the hasty and
imperfect bill of rights. The commissions however of William's judges
ran _quamdiu se bene gesserint_. But the king gave an unfortunate
instance of his very injudicious tenacity of bad prerogatives, in
refusing his assent, in 1692, to a bill that had passed both houses,
for establishing this independence of the judges by law and confirming
their salaries.[287] We owe this important provision to the act of
settlement; not as ignorance and adulation have perpetually asserted,
to his late majesty George III. No judge can be dismissed from office,
except in consequence of a conviction for some offence, or the address
of both houses of parliament, which is tantamount to an act of the
legislature.[288] It is always to be kept in mind that they are still
accessible to the hope of further promotion, to the zeal of political
attachment, to the flattery of princes and ministers; that the bias of
their prejudices, as elderly and peaceable men, will, in a plurality
of cases, be on the side of power; that they have very frequently been
trained, as advocates, to vindicate every proceeding of the Crown;
from all which we should look on them with some little vigilance, and
not come hastily to a conclusion that, because their commissions
cannot be vacated by the Crown's authority, they are wholly out of the
reach of its influence. I would by no means be misinterpreted, as if
the general conduct of our courts of justice since the revolution, and
especially in later times, which in most respects have been the best
times, were not deserving of that credit it has usually gained; but
possibly it may have been more guided and kept straight than some are
willing to acknowledge by the spirit of observation and censure which
modifies and controls our whole government.
The last clause in the act of settlement, that a pardon under the
great seal shall not be pleadable in bar of an impeachment, requires
no particular notice beyond what has been said on the subject in a
former chapter.[289]
_Oath of abjuration._--In the following session a new parliament
having been assembled, in which the tory faction had less influence
than in the last, and Louis XIV. having, in the meantime, acknowledged
the son of James as King of England, the natural resentment of this
insult and breach of faith was shown in a more decided assertion of
revolution principles than had hitherto been made. The pretended king
was attainted of high treason; a measure absurd as a law, but politic
as a denunciation of perpetual enmity.[290] It was made high treason
to correspond with him, or remit money for his service. And a still
more vigorous measure was adopted, an oath to be taken, not only by
all civil officers, but by all ecclesiastics, members of the
universities, and schoolmasters, acknowledging William as lawful and
rightful king, and denying any right or title in the pretended Prince
of Wales.[291] The tories, and especially Lord Nottingham, had
earnestly contended, in the beginning of the king's reign, against
those words on the act of recognition, which asserted William and Mary
to be rightfully and lawfully king and queen. They opposed the
association at the time of the assassination plot, on account of the
same epithets, taking a distinction which satisfied the narrow
understanding of Nottingham, and served as a subterfuge for more
cunning men, between a king whom they were bound in all cases to obey
and one whom they could style rightful and lawful. These expressions
were in fact slightly modified on that occasion; yet fifteen peers and
ninety-two commoners declined, at least for a time, to sign it. The
present oath of abjuration therefore was a signal victory of the whigs
who boasted of the revolution over the tories who excused it.[292] The
renunciation of the hereditary right, for at this time few of the
latter party believed in the young man's spuriousness, was complete
and unequivocal. The dominant faction might enjoy perhaps a charitable
pleasure in exposing many of their adversaries, and especially the
high church clergy, to the disgrace and remorse of perjury. Few or
none however who had taken the oath of allegiance, refused this
additional cup of bitterness, though so much less defensible,
according to the principles they had employed to vindicate their
compliance in the former instance; so true it is that, in matters of
conscience, the first scruple is the only one which it costs much to
overcome. But the imposition of this test, as was evident in a few
years, did not check the boldness, or diminish the numbers, of the
Jacobites; and I must confess, that of all sophistry that weakens
moral obligation, that is the most pardonable, which men employ to
escape from this species of tyranny. The state may reasonably make an
entire and heartfelt attachment to its authority the condition of
civil trust; but nothing more than a promise of peaceable obedience
can justly be exacted from those who ask only to obey in peace. There
was a bad spirit abroad in the church, ambitious, factious,
intolerant, calumnious; but this was not necessarily partaken by all
its members, and many excellent men might deem themselves hardly dealt
with in requiring their denial of an abstract proposition, which did
not appear so totally false according to their notions of the English
constitution and the church's doctrine.[293]
FOOTNOTES:
[152] _Parl. Hist._ v. 54.
[153] _Parl. Hist._ v. 108.
[154] Journals, 11 and 12 Feb. 1688-9.
[155] _Parl. Hist._ 345.
[156] Lords' Journals, 22 Nov. 1689.
[157] The guards retained out of the old army disbanded at the king's
return, have been already mentioned to have amounted to about 5000
men; though some assert their number at first to have been
considerably less. No objection seems to have been made at the time to
the continuance of these regiments. But in 1667, on the insult offered
to the coasts by the Dutch fleet, a great panic arising, 12,000 fresh
troops were hastily levied. The Commons, on July 25, came to an
unanimous resolution, that his majesty be humbly desired by such
members as are his privy council, that when a peace is concluded, the
new-raised forces be disbanded. The king, four days after, in a speech
to both houses, said, "he wondered what one thing he had done since
his coming into England, to persuade any sober person that he did
intend to govern by a standing army; he said he was more an Englishman
than to do so. He desired, for as much as concerned him, to preserve
the laws," etc. _Parl. Hist._ iv. 363. Next session the two houses
thanked him for having disbanded the late raised forces. _Id._ 369.
But in 1673, during the second Dutch war, a considerable force having
been levied, the House of Commons, after a warm debate, resolved (Nov.
3) that a standing army was a grievance. _Id._ 604. And on February
following, that the continuing of any standing forces in this nation,
other than the militia, is a great grievance and vexation to the
people; and that this house do humbly petition his majesty to cause
immediately to be disbanded that part of them that were raised since
Jan. 1, 1663. _Id._ 665. This was done not long afterwards; but early
in 1678, on the pretext of entering into a war with France, he
suddenly raised an army of 20,000 men or more, according to some
accounts, which gave so much alarm to the parliament, that they would
only vote supplies on condition that these troops should be
immediately disbanded. _Id._ 985. The king, however, employed the
money without doing so; and maintained, in the next session, that it
had been necessary to keep them on foot; intimating at the same time,
that he was now willing to comply, if the house thought it expedient
to disband the troops; which they accordingly voted, with unanimity,
to be necessary for the safety of his majesty's person, and
preservation of the peace of the government. Nov. 25. _Id._ 1049.
James showed, in his speech to parliament (Nov. 9, 1685) that he
intended to keep on foot a standing army. _Id._ 1371. But, though that
House of Commons was very differently composed from those in his
brother's reign, and voted as large a supply as the king required,
they resolved that a bill be brought in to render the militia more
useful; an oblique and timid hint of their disapprobation of a regular
force, against which several members had spoken.
I do not find that any one, even in debate, goes the length of denying
that the king might, by his prerogative, maintain a regular army; none
at least of the resolutions in the Commons can be said to have that
effect.
[158] It is expressly against the petition of right, to quarter troops
on the citizens, or to inflict any punishment by martial law. No court
martial, in fact, can have any coercive jurisdiction except by
statute; unless we should resort to the old tribunal of the constable
and marshal. And that this was admitted, even in bad times, we may
learn by an odd case in Sir Thomas Jones's _Reports_, 147 (Pasch. 33
Car. 2, 1681). An action was brought for assault and false
imprisonment. The defendant pleaded that he was lieutenant-governor of
the isle of Scilly, and that the plaintiff was a soldier belonging to
the garrison, and that it was the ancient custom of the castle, that
if any soldier refused to render obedience, the governor might punish
him by imprisonment for a reasonable time; which he had therefore
done. The plaintiff demurred, and had judgment in his favour. By
demurring, he put it to the court to determine, whether this plea,
which is obviously fabricated in order to cover the want of any
general right to maintain discipline in this manner, were valid in
point of law; which they decided, as it appears, in the negative.
In the next reign, however, an attempt was made to punish deserters
capitally, not by a court martial, but on the authority of an ancient
act of parliament. Chief-Justice Herbert is said to have resigned his
place in the King's Bench rather than come into this. Wright succeeded
him; and two deserters, having been convicted, were executed in
London. Ralph, 961. I cannot discover that there was anything illegal
in the proceeding; and therefore question a little Herbert's motive.
See 3 Inst. 96.
[159] See several in the _Somers Tracts_, vol. x. One of these, a
"Letter to a Member of the Convention," by Dr. Sherlock, is very ably
written: and puts all the consequences of a change of government, as
to popular dissatisfaction, etc., much as they turned out, though, of
course, failing to show that a treaty with the king would be less open
to objection. Sherlock declined for a time to take the oaths; but,
complying afterwards, and writing in vindication, or at least excuse,
of the revolution, incurred the hostility of the Jacobites, and
impaired his own reputation by so interested a want of consistency;
for he had been the most eminent champion of passive obedience. Even
the distinction he found out, of the lawfulness of allegiance to a
king _de facto_, was contrary to his former doctrine.
[160] 1 W. & M. c. 8.