CHAPTER XII

EARL OF DANBY'S ADMINISTRATION--DEATH OF CHARLES II.

The period of Lord Danby's administration, from 1673 to 1678, was full

of chicanery and dissimulation on the king's side, of increasing

suspiciousness on that of the Commons. Forced by the voice of

parliament, and the bad success of his arms, into peace with Holland,

Charles struggled hard against a co-operation with her in the great

confederacy of Spain and the empire to resist the encroachments of

France on the Netherlands. Such was in that age the strength of the

barrier fortresses, and so heroic the resistance of the Prince of

Orange, that, notwithstanding the extreme weakness of Spain, there was

no moment in that war, when the sincere and strenuous intervention of

England would not have compelled Louis XIV. to accept the terms of the

treaty of Aix la Chapelle. It was the treacherous attachment of

Charles II. to French interests that brought the long congress of

Nimeguen to an unfortunate termination; and, by surrendering so many

towns of Flanders as laid the rest open to future aggression, gave

rise to the tedious struggles of two more wars.[696]

_Opposition in the commons._--In the behaviour of the House of Commons

during this period, previously at least to the session of 1678, there

seems nothing which can incur much reprehension from those who reflect

on the king's character and intentions; unless it be that they granted

supplies rather too largely, and did not sufficiently provide against

the perils of the time. But the House of Lords contained unfortunately

an invincible majority for the court, ready to frustrate any

legislative security for public liberty. Thus the habeas corpus act,

first sent up to that house in 1674, was lost there in several

successive sessions. The Commons therefore testified their sense of

public grievances, and kept alive an alarm in the nation by

resolutions and addresses, which a phlegmatic reader is sometimes too

apt to consider as factious or unnecessary. If they seem to have dwelt

more, in some of these, on the dangers of religion, and less on those

of liberty, than we may now think reasonable, it is to be remembered

that the fear of popery has always been the surest string to touch for

effect on the people; and that the general clamour against that

religion was all covertly directed against the Duke of York, the most

dangerous enemy of every part of our constitution.

_Corruption of the parliament._--The real vice of this parliament was

not intemperance, but corruption. Clifford, and still more Danby, were

masters in an art practised by ministers from the time of James I.

(and which indeed can never be unknown where there exists a court and

a popular assembly), that of turning to their use the weapons of

mercenary eloquence by office, or blunting their edge by bribery.[697]

Some who had been once prominent in opposition, as Sir Robert Howard

and Sir Richard Temple, became placemen; some, like Garraway and Sir

Thomas Lee, while they continued to lead the country party, took money

from the court for softening particular votes;[698] many, as seems to

have been the case with Reresby, were won by promises, and the

pretended friendship of men in power.[699] On two great classes of

questions, France and popery, the Commons broke away from all

management; nor was Danby unwilling to let his master see their

indocility on these subjects. But, in general, till the year 1678, by

dint of the means before mentioned, and partly no doubt through the

honest conviction of many that the king was not likely to employ any

minister more favourable to the protestant religion and liberties of

Europe, he kept his ground without any insuperable opposition from

parliament.[700]

_Character of the Earl of Danby._--The Earl of Danby had virtues as an

English minister, which serve to extenuate some great errors and an

entire want of scrupulousness in his conduct. Zealous against the

church of Rome and the aggrandisement of France, he counteracted,

while he seemed to yield to, the prepossessions of his master. If the

policy of England before the peace of Nimeguen was mischievous and

disgraceful, it would evidently have been far more so, had the king

and Duke of York been abetted by this minister in their fatal

predilection for France. We owe to Danby's influence, it must ever be

remembered, the marriage of Princess Mary to the Prince of Orange, the

seed of the revolution and the act of settlement--a courageous and

disinterested counsel, which ought not to have proved the source of

his greatest misfortunes.[701] But we cannot pretend to say that he

was altogether as sound a friend to the constitution of his country,

as to her national dignity and interests. I do not mean that he wished

to render the king absolute. But a minister, harassed and attacked in

parliament, is tempted to desire the means of crushing his opponents,

or at least of augmenting his own sway. The mischievous bill that

passed the House of Lords in 1675, imposing as a test to be taken by

both houses of parliament, as well as all holding beneficed offices, a

declaration that resistance to persons commissioned by the king was in

all cases unlawful, and that they would never attempt any alteration

in the government in church or state, was promoted by Danby, though it

might possibly originate with others.[702] It was apparently meant as

a bone of contention among the country party, in which presbyterians

and old parliamentarians were associated with discontented cavaliers.

Besides the mischief of weakening this party, which indeed the

minister could not fairly be expected to feel, nothing could have been

devised more unconstitutional, or more advantageous to the court's

projects of arbitrary power.

It is certainly possible that a minister who, aware of the dangerous

intentions of his sovereign or his colleagues, remains in the cabinet

to thwart and countermine them, may serve the public more effectually

than by retiring from office; but he will scarcely succeed in avoiding

some material sacrifices of integrity, and still less of reputation.

Danby, the ostensible adviser of Charles II., took on himself the just

odium of that hollow and suspicious policy which appeared to the

world. We know indeed that he was concerned, against his own judgment,

in the king's secret receipt of money from France, the price of

neutrality, both in 1676 and in 1678, the latter to his own

ruin.[703] Could the opposition, though not so well apprised of these

transactions as we are, be censured for giving little credit to his

assurances of zeal against that power; which, though sincere in him,

were so little in unison with the disposition of the court? Had they

no cause to dread that the great army suddenly raised in 1677, on

pretence of being employed against France, might be turned to some

worse purposes more congenial to the king's temper?[704]

_Connection of the popular party with France--Its motives on both

sides._--This invincible distrust of the court is the best apology for

that which has given rise to so much censure, the secret connections

formed by the leaders of opposition with Louis XIV., through his

ambassadors Barillon and Rouvigny, about the spring of 1678.[705] They

well knew that the king's designs against their liberties had been

planned in concert with France, and could hardly be rendered effectual

without her aid in money, if not in arms.[706] If they could draw

over this dangerous ally from his side, and convince the King of

France that it was not his interest to crush their power, they would

at least frustrate the suspected conspiracy, and secure the disbanding

of the army; though at a great sacrifice of the continental policy

which they had long maintained, and which was truly important to our

honour and safety. Yet there must be degrees in the scale of public

utility; and, if the liberties of the people were really endangered by

domestic treachery, it was ridiculous to think of saving Tournay and

Valenciennes at the expense of all that was dearest at home. This is

plainly the secret of that unaccountable, as it then seemed, and

factious opposition, in the year 1678; which cannot be denied to have

served the ends of France, and thwarted the endeavours of Lord Danby

and Sir William Temple to urge on the uncertain and half-reluctant

temper of the king into a decided course of policy.[707] Louis, in

fact, had no desire to see the King of England absolute over his

people, unless it could be done so much by his own help as to render

himself the real master of both. In the estimate of kings, or of such

kings as Louis XIV., all limitations of sovereignty, all co-ordinate

authority of estates and parliaments, are not only derogatory to the

royal dignity, but injurious to the state itself, of which they

distract the councils and enervate the force. Great armies, prompt

obedience, unlimited power over the national resources, secrecy in

council, rapidity in execution, belong to an energetic and enlightened

despotism: we should greatly err in supposing that Louis XIV. was led

to concur in projects of subverting our constitution from any jealousy

of its contributing to our prosperity. He saw, on the contrary, in the

perpetual jarring of kings and parliaments, a source of feebleness and

vacillation in foreign affairs, and a field for intrigue and

corruption. It was certainly far from his design to see a republic,

either in name or effect, established in England; but an unanimous

loyalty, a spontaneous submission to the court, was as little

consonant to his interests; and, especially if accompanied with a

willing return of the majority to the catholic religion, would have

put an end to his influence over the king, and still more certainly

over the Duke of York.[708] He had long been sensible of the advantage

to be reaped from a malcontent party in England. In the first years

after the restoration, he kept up a connection with the disappointed

commonwealth's men, while their courage was yet fresh and unsubdued;

and in the war of 1665 was very nearly exciting insurrections both in

England and Ireland.[709] These schemes of course were suspended, as

he grew into closer friendship with Charles, and saw a surer method of

preserving an ascendancy over the kingdom. But, as soon as the

Princess Mary's marriage, contrary to the King of England's promise,

and to the plain intent of all their clandestine negotiations,

displayed his faithless and uncertain character to the French

cabinet, they determined to make the patriotism, the passion, and the

corruption of the House of Commons minister to their resentment and

ambition.

The views of Lord Hollis and Lord Russell in this clandestine

intercourse with the French ambassador were sincerely patriotic and

honourable: to detach France from the king; to crush the Duke of York

and popish faction; to procure the disbanding of the army, the

dissolution of a corrupted parliament, the dismissal of a bad

minister.[710] They would indeed have displayed more prudence in

leaving these dark and dangerous paths of intrigue to the court which

was practised in them. They were concerting measures with the natural

enemy of their country, religion, honour, and liberty; whose obvious

policy was to keep the kingdom disunited that it might be powerless;

who had been long abetting the worst designs of our own court, and who

could never be expected to act against popery and despotism, but for

the temporary ends of his ambition. Yet, in the very critical

circumstances of that period, it was impossible to pursue any course

with security; and the dangers of excessive circumspection and

adherence to general rules may often be as formidable as those of

temerity. The connection of the popular party with France may very

probably have frustrated the sinister intentions of the king and duke,

by compelling the reduction of the army, though at the price of a

great sacrifice of European policy.[711] Such may be, with

unprejudiced men, a sufficient apology for the conduct of Lord

Russell and Lord Hollis, the most public-spirited and high-minded

characters of their age, in this extraordinary and unnatural alliance.

It would have been unworthy of their virtue to have gone into so

desperate an intrigue with no better aim than that of ruining Lord

Danby; and of this I think we may fully acquit them. The nobleness of

Russell's disposition beams forth in all that Barillon has written of

their conferences. Yet, notwithstanding the plausible grounds of his

conduct, we can hardly avoid wishing that he had abstained from so

dangerous an intercourse, which led him to impair, in the eyes of

posterity, by something more like faction than can be ascribed to any

other part of his parliamentary life, the consistency and

ingenuousness of his character.[712]

_Doubt as to the acceptance of money by the popular party._--I have

purposely mentioned Lord Russell and Lord Hollis apart from others who

were mingled in the same intrigues of the French ambassador, both

because they were among the first with whom he tampered, and because

they are honourably distinguished by their abstinence from all

pecuniary remuneration, which Hollis refused, and which Barillon did

not presume to offer to Russell. It appears however from this

minister's accounts of the money he had expended in this secret

service of the French Crown, that, at a later time, namely about the

end of 1680, many of the leading members of opposition, Sir Thomas

Littleton, Mr. Garraway, Mr. Hampden, Mr. Powle, Mr. Sacheverell, Mr.

Foley, received sums of 500 or 300 guineas, as testimonies of the King

of France's munificence and favour. Among others, Algernon Sidney,

who, though not in parliament, was very active out of it, is more than

once mentioned. Chiefly because the name of Algernon Sidney had been

associated with the most stern and elevated virtue, this statement was

received with great reluctance; and many have ventured to call the

truth of these pecuniary gratifications in question. This is certainly

a bold surmise; though Barillon is known to have been a man of

luxurious and expensive habits, and his demands for more money on

account of the English court, which continually occur in his

correspondence with Louis, may lead to a suspicion that he would be in

some measure a gainer by it. This however might possibly be the case

without actual peculation. But it must be observed that there are two

classes of those who are alleged to have received presents through his

hands; one, of such as were in actual communication with himself;

another, of such as Sir John Baber, a secret agent, had prevailed upon

to accept it. Sidney was in the first class; but, as to the second,

comprehending Littleton, Hampden, Sacheverell, in whom it is as

difficult to suspect pecuniary corruption as in him, the proof is

manifestly weaker, depending only on the assertion of an intriguer

that he had paid them the money. The falsehood either of Baber or

Barillon would acquit these considerable men. Nor is it to be reckoned

improbable that persons employed in this clandestine service should be

guilty of a fraud, for which they could evidently never be made

responsible. We have indeed a remarkable confession of Coleman, the

famous intriguer executed for the popish plot, to this effect. He

deposed in his examination before the House of Commons, in November

1678, that he had received last session of Barillon £2500 to be

distributed among members of parliament, which he had converted to his

own use.[713] It is doubtless possible that Coleman having actually

expended this money in the manner intended, bespoke the favour of

those whose secret he kept by taking the discredit of such a fraud on

himself. But it is also possible that he spoke the truth. A similar

uncertainty hangs over the transactions of Sir John Baber. Nothing in

the parliamentary conduct of the above-mentioned gentlemen in 1680

corroborates the suspicion of an intrigue with France, whatever may

have been the case in 1678.

I must fairly confess however that the decided bias of my own mind is

on the affirmative side of this question; and that principally because

I am not so much struck, as some have been, by any violent

improbability in what Barillon wrote to his court on the subject. If

indeed we were to read that Algernon Sidney had been bought over by

Louis XIV. or Charles II. to assist in setting up absolute monarchy in

England, we might fairly oppose our knowledge of his inflexible and

haughty character, of his zeal, in life and death, for republican

liberty. But there is, I presume, some moral distinction between the

acceptance of a bribe to desert or betray our principles and that of a

trifling present for acting in conformity to them. The one is, of

course, to be styled corruption; the other is repugnant to a generous

and delicate mind, but too much sanctioned by the practice of an age

far less scrupulous than our own, to have carried with it any great

self-reproach or sense of degradation. It is truly inconceivable that

men of such property as Sir Thomas Littleton or Mr. Foley should have

accepted 300 or 500 guineas, the sums mentioned by Barillon, as the

price of apostasy from those political principles to which they owed

the esteem of their country, or of an implicit compliance with the

dictates of France. It is sufficiently discreditable to the times in

which they lived, that they should have accepted so pitiful a

gratuity; unless indeed we should in candour resort to an hypothesis

which seems not absurd, that they agreed among themselves not to

offend Louis, or excite his distrust, by a refusal of this money.

Sidney indeed was, as there is reason to think, a distressed man; he

had formerly been in connection with the court of France,[714] and had

persuaded himself that the countenance of that power might one day or

other be afforded to his darling scheme of a commonwealth; he had

contracted a dislike to the Prince of Orange, and consequently to the

Dutch alliance, from the same governing motive: is it strange that one

so circumstanced should have accepted a small gratification from the

King of France which implied no dereliction of his duty as an

Englishman, or any sacrifice of political integrity? And I should be

glad to be informed by the idolaters of Algernon Sidney's name, what

we know of him from authentic and contemporary sources which renders

this incredible.

_Secret treaties of the king with France._--France, in the whole

course of these intrigues, held the game in her hands. Mistress of

both parties, she might either embarrass the king through parliament,

if he pretended to an independent course of policy, or cast away the

latter, when he should return to his former engagements. Hence, as

early as May 1678, a private treaty was set on foot between Charles

and Louis, by which the former obliged himself to keep a neutrality,

if the allies should not accept the terms offered by France, to recall

all his troops from Flanders within two months, to disband most of his

army and not to assemble his parliament for six months; in return he

was to receive 6,000,000 livres. This was signed by the king himself

on May 27; none of his ministers venturing to affix their names.[715]

Yet at this time he was making outward professions of an intention to

carry on the war. Even in this secret treaty, so thorough was his

insincerity, he meant to evade one of its articles, that of

disbanding his troops. In this alone he was really opposed to the

wishes of France; and her pertinacity in disarming him seems to have

been the chief source of those capricious changes of his disposition,

which we find for three or four years at this period.[716] Louis again

appears not only to have mistrusted the king's own inclinations after

the Prince of Orange's marriage, and his ability to withstand the

eagerness of the nation for war, but to have apprehended he might

become absolute by means of his army, without standing indebted for it

to his ancient ally. In this point therefore he faithfully served the

popular party. Charles used every endeavour to evade this condition;

whether it were that he still entertained hopes of attaining arbitrary

power through intimidation, or that, dreading the violence of the

House of Commons, and ascribing it rather to a republican conspiracy

than to his own misconduct, he looked to a military force as his

security. From this motive we may account for his strange proposal to

the French king of a league in support of Sweden, by which he was to

furnish fifteen ships and 10,000 men, at the expense of France, during

three years, receiving six millions for the first year, and four for

each of the two next. Louis, as is highly probable, betrayed this

project to the Dutch government; and thus frightened them into that

hasty signature of the treaty of Nimeguen, which broke up the

confederacy and accomplished the immediate objects of his ambition. No

longer in need of the court of England, he determined to punish it for

that duplicity, which none resent more in others than those who are

accustomed to practise it. He refused Charles the pension stipulated

by the private treaty, alleging that its conditions had not been

performed; and urged on Montagu, with promises of indemnification, to

betray as much as he knew of that secret, in order to ruin Lord

Danby.[717]

_Fall of Danby_--_His impeachment._--The ultimate cause of this

minister's fall may thus be deduced from the best action of his life;

though it ensued immediately from his very culpable weakness in aiding

the king's base inclinations towards a sordid bargaining with France.

It is well known that the famous letter to Montagu, empowering him to

make an offer of neutrality for the price of 6,000,000 livres, was not

only written by the king's express order, but that Charles attested

this with his own signature in a postscript.

This bears date five days after an act had absolutely passed to raise

money for carrying on the war; a circumstance worthy of particular

attention, as it both puts an end to every pretext or apology which

the least scrupulous could venture to urge in behalf of this

negotiation, but justifies the whig party of England in an invincible

distrust, an inexpiable hatred, of so perfidious a cozener as filled

the throne. But as he was beyond their reach, they exercised a

constitutional right in the impeachment of his responsible minister.

For responsible he surely was; though, strangely mistaking the

obligations of an English statesman, Danby seems to fancy in his

printed defence that the king's order would be a sufficient warrant to

justify obedience in any case not literally unlawful. "I believe," he

says, "there are very few subjects but would take it ill not to be

obeyed by their servants; and their servants might as justly expect

their master's protection for their obedience." The letter to Montagu,

he asserts, "was written by the king's command, upon the subject of

peace and war, wherein his majesty alone is at all times sole judge,

and ought to be obeyed not only by any of his ministers of state, but

by all his subjects."[718] Such were, in that age, the monarchical or

tory maxims of government, which the impeachment of this minister

contributed in some measure to overthrow. As the king's authority for

the letter to Montagu was an undeniable fact, evidenced by his own

handwriting, the Commons in impeaching Lord Danby went a great way

towards establishing the principle that no minister can shelter

himself behind the throne by pleading obedience to the orders of his

sovereign. He is answerable for the justice, the honesty, the utility

of all measures emanating from the Crown, as well as for their

legality; and thus the executive administration is, or ought to be,

subordinate, in all great matters of policy, to the superintendence

and virtual control of the two Houses of Parliament. It must at the

same time be admitted that, through the heat of honest indignation and

some less worthy passions on the one hand, through uncertain and crude

principles of constitutional law on the other, this just and necessary

impeachment of the Earl of Danby was not so conducted as to be exempt

from all reproach. The charge of high treason for an offence

manifestly amounting only to misdemeanour, with the purpose, not

perhaps of taking the life of the accused, but at least of procuring

some punishment beyond the law,[719] the strange mixture of articles,

as to which there was no presumptive proof, or which were evidently

false, such as concealment of the popish plot, gave such a character

of intemperance and faction to these proceedings, as may lead

superficial readers to condemn them altogether.[720] The compliance of

Danby with the king's corrupt policy had been highly culpable, but it

was not unprecedented; it was even conformable to the court standard

of duty; and as it sprung from too inordinate a desire to retain

power, it would have found an appropriate and adequate chastisement in

exclusion from office. We judge perhaps somewhat more favourably of

Lord Danby than his contemporaries at that juncture were warranted to

do; but even then he was rather a minister to be pulled down than a

man to be severely punished. His one great and undeniable service to

the protestant and English interests should have palliated a multitude

of errors. Yet this was the mainspring and first source of the

intrigue that ruined him.

_Questions arising on the impeachment_--_Danby's commitment to the

Tower._--The impeachment of Lord Danby brought forward several

material discussions on that part of our constitutional law, which

should not be passed over in this place. 1. As soon as the charges

presented by the Commons at the bar of the upper house had been read,

a motion was made that the earl should withdraw; and another

afterwards, that he should be committed to the Tower: both of which

were negatived by considerable majorities.[721] This refusal to commit

on a charge of treason had created a dispute between the two houses in

the instance of Lord Clarendon.[722] In that case, however, one of the

articles of impeachment did actually contain an unquestionable

treason. But it was contended with much force on the present occasion

that, if the Commons, by merely using the word traitorously, could

alter the character of offences which, on their own showing, amounted

only to misdemeanours, the boasted certainty of the law in matters of

treason would be at an end; and unless it were meant that the Lords

should pass sentence in such a case against the received rules of law,

there could be no pretext for their refusing to admit the accused to

bail. Even in Strafford's case, which was a condemned precedent, they

had a general charge of high treason upon which he was committed;

while the offences alleged against Danby were stated with

particularity, and upon the face of the articles could not be brought

within any reasonable interpretation of the statutes relating to

treason. The House of Commons faintly urged a remarkable clause in the

act of Edward III., which provides that, in case of any doubt arising

as to the nature of an offence charged to amount to treason, the

judges should refer it to the sentence of parliament; and maintained

that this invested the two houses with a declaratory power to extend

the penalties of the law to new offences which had not been clearly

provided for in its enactments. But, though something like this might

possibly have been in contemplation with the framers of that statute,

and precedents were not absolutely wanting to support the

construction, it was so repugnant to the more equitable principles of

criminal law which had begun to gain ground, that even the heat of

faction did not induce the Commons to insist upon it. They may be

considered however as having carried their point; for, though the

prorogation and subsequent dissolution of the present parliament

ensued so quickly that nothing more was done in the matter, yet when

the next House of Commons revived the impeachment, the Lords voted to

take Danby into custody without any further objection.[723] It ought

not to be inferred from hence, that they were wrong in refusing to

commit; nor do I conceive, notwithstanding the latter precedent of

Lord Oxford, that any rule to the contrary is established. In any

future case it ought to be open to debate, whether articles of

impeachment pretending to contain a charge of high treason do

substantially set forth overt acts of such a crime; and, if the House

of Lords shall be of opinion, either by consulting the judges or

otherwise, that no treason is specially alleged, they should,

notwithstanding any technical words, treat the offence as a

misdemeanour, and admit the accused to bail.[724]

2. _Pardon pleaded in bar._--A still more important question sprung

up as to the king's right of pardon upon a parliamentary impeachment.

Danby, who had absconded on the unexpected revival of these

proceedings in the new parliament, finding that an act of attainder

was likely to pass against him in consequence of his flight from

justice, surrendered himself to the usher of the black rod; and, on

being required to give in his written answer to the charges of the

Commons, pleaded a pardon, secretly obtained from the king, in bar of

the prosecution.[725] The Commons resolved that the pardon was illegal

and void, and ought not to be pleaded in bar of the impeachment of the

Commons of England. They demanded judgment at the Lords' bar against

Danby, as having put in a void plea. They resolved, with that culpable

violence which distinguished this and the succeeding House of Commons,

in order to deprive the accused of the assistance of counsel, that no

commoner whatsoever should presume to maintain the validity of the

pardon pleaded by the Earl of Danby without their consent, on pain of

being accounted a betrayer of the liberties of the Commons of

England.[726] They denied the right of the bishops to vote on the

validity of this pardon. They demanded the appointment of a committee

from both houses to regulate the form and manner of proceeding on this

impeachment, as well as on that of the five lords accused of

participation in the popish plot. The upper house gave some signs of a

vacillating and temporising spirit, not by any means unaccountable.

They acceded, after a first refusal, to the proposition of a

committee, though manifestly designed to encroach on their own

exclusive claim of judicature.[727] But they came to a resolution

that the spiritual Lords had a right to sit and vote in parliament in

capital cases, until judgment of death shall be pronounced.[728] The

Commons of course protested against this vote;[729] but a prorogation

soon dropped the curtain over their differences; and Danby's

impeachment was not acted upon in the next parliament.

_Votes of bishops._--There seems to be no kind of pretence for

objecting to the votes of the bishops on such preliminary questions as

may arise in an impeachment of treason. It is true that ancient custom

has so far ingrafted the provisions of the ecclesiastical law on our

constitution, that they are bound to withdraw when judgment of life or

death is pronounced; though even in this they always do it with a

protestation of their right to remain. This, once claimed as a

privilege of the church, and reluctantly admitted by the state,

became, in the lapse of ages, an exclusion and badge of inferiority.

In the constitutions of Clarendon, under Henry II., it is enacted,

that the bishops and others holding spiritual benefices "in capite"

should give their attendance at trials in parliament, till it come to

sentence of life or member. This, although perhaps too ancient to have

authority as statute law, was a sufficient evidence of the

constitutional usage, where nothing so material could be alleged on

the other side. And, as the original privilege was built upon nothing

better than the narrow superstitions of the canon law, there was no

reasonable pretext for carrying the exclusion of the spiritual lords

farther than certain and constant precedents required. Though it was

true, as the enemies of Lord Danby urged, that by voting for the

validity of his pardon, they would in effect determine the whole

question in his favour, yet there seemed no serious reasons,

considering it abstractedly from party views, why they should not thus

indirectly be restored for once to a privilege, from which the

prejudices of former ages alone had shut them out.

The main point in controversy, whether a general or special pardon

from the king could be pleaded in answer to an impeachment of the

Commons so as to prevent any further proceedings in it, never came to

a regular decision. It was evident that a minister who had influence

enough to obtain such an indemnity, might set both houses of

parliament at defiance; the pretended responsibility of the Crown's

advisers, accounted the palladium of our constitution, would be an

idle mockery, if not only punishment could be averted, but enquiry

frustrated. Even if the king could remit the penalties of a guilty

minister's sentence upon impeachment, it would be much, that public

indignation should have been excited against him, that suspicion

should have been turned into proof, that shame and reproach,

irremissible by the great seal, should avenge the wrongs of his

country. It was always to be presumed that a sovereign, undeceived by

such a judicial inquiry, or sensible to the general voice it roused,

would voluntarily, or at least prudently, abandon an unworthy

favourite. Though it might be admitted that long usage had established

the royal prerogative of granting pardons under the great seal, even

before trial, and that such pardons might be pleaded in bar (a

prerogative indeed which ancient statutes, not repealed, though gone

into disuse, or rather in no time acted upon, had attempted to

restrain), yet we could not infer that it extended to cases of

impeachment. In ordinary criminal proceedings by indictment the king

was before the court as prosecutor, the suit was in his name; he might

stay the process at his pleasure, by entering a "noli prosequi;" to

pardon, before or after judgment, was a branch of the same

prerogative; it was a great constitutional trust, to be exercised at

his discretion. But in an appeal or accusation of felony, brought by

the injured party, or his next of blood, a proceeding wherein the

king's name did not appear, it was undoubted that he could not remit

the capital sentence. The same principle seemed applicable to an

impeachment at the suit of the Commons of England, demanding justice

from the supreme tribunal of the other house of parliament. It could

not be denied that James had remitted the whole sentence upon Lord

Bacon. But impeachments were so unusual at that time, and the

privileges of parliament so little out of dispute, that no great

stress could be laid on this precedent.

Such must have been the course of arguing, strong on political, and

specious on legal grounds, which induced the Commons to resist the

plea put in by Lord Danby. Though this question remained in suspense

on the present occasion, it was finally decided by the legislature in

the act of settlement; which provides that no pardon under the great

seal of England be pleadable to an impeachment of the Commons in

parliament.[730] These expressions seem tacitly to concede the Crown's

right of granting a pardon after sentence; which, though perhaps it

could not well be distinguished in point of law from a pardon

pleadable in bar, stands on a very different footing, as has been

observed above, with respect to constitutional policy. Accordingly,

upon the impeachment of the six peers who had been concerned in the

rebellion of 1715, the House of Lords after sentence passed, having

come to a resolution on debate that the king had a right to reprieve

in cases of impeachment, addressed him to exercise that prerogative as

to such of them as should deserve his mercy; and three of the number

were in consequence pardoned.[731]

3. _Abatement of impeachments by dissolution._--The impeachment of

Danby first brought forward another question of hardly less magnitude,

and remarkable as one of the few great points in constitutional law,

which have been discussed and finally settled within the memory of the

present generation: I mean the continuance of an impeachment by the

Commons from one parliament to another. Though this has been put at

rest by a determination altogether consonant to maxims of expediency,

it seems proper in this place to show briefly the grounds upon which

the argument on both sides rested.

In the earlier period of our parliamentary records, the business of

both houses, whether of a legislative or judicial nature, though often

very multifarious, was despatched, with the rapidity natural to

comparatively rude times, by men impatient of delay, unused to doubt,

and not cautious in the proof of facts or attentive to the subtleties

of reasoning. The session, generally speaking, was not to terminate

till the petitions in parliament for redress had been disposed of,

whether decisively or by reference to some more permanent tribunal.

Petitions for alteration of the law, presented by the Commons, and

assented to by the Lords, were drawn up into statutes by the king's

council just before the prorogation or dissolution. They fell

naturally to the ground, if the session closed before they could be

submitted to the king's pleasure. The great change that took place in

the reign of Henry VI., by passing bills complete in their form

through the two houses instead of petitions, while it rendered

manifest to every eye that distinction between legislative and

judicial proceedings which the simplicity of older times had half

concealed, did not affect this constitutional principle. At the close

of a session, every bill then in progress through parliament became a

nullity, and must pass again through all its stages before it could be

tendered for the royal assent. No sort of difference existed in the

effect of a prorogation and a dissolution; it was even maintained that

a session made a parliament.

During the fifteenth and sixteenth centuries, writs of error from

inferior courts to the House of Lords became far less usual than in

the preceding age; and when they occurred, as error could only be

assigned on a point of law appearing on the record, they were quickly

decided with the assistance of the judges. But, when they grew more

frequent, and especially when appeals from the chancellor, requiring

often a tedious examination of depositions, were brought before the

Lords, it was found that a sudden prorogation might often interrupt a

decision; and the question arose, whether writs of error, and other

proceedings of a similar nature, did not, according to precedent or

analogy, cease, or in technical language abate, at the close of a

session. An order was accordingly made by the house on March 11, 1673,

that "the Lords committees for privileges should inquire whether an

appeal to this house either by writ of error or petition, from the

proceedings of any other court being depending, and not determined in

one session of parliament, continue in statu quo unto the next session

of parliament, without renewing the writ of error or petition, or

beginning all anew." The committee reported on the 29th of March,

after mis-reciting the order of reference to them in a very remarkable

manner, by omitting some words and interpolating others, so as to make

it far more extensive than it really was,[732] that upon the

consideration of precedents, which they specify, they came to a

resolution that "businesses depending in one parliament or session of

parliament have been continued to the next session of the same

parliament, and the proceedings thereupon have remained in the same

state in which they were left when last in agitation." The house

approved of this resolution, and ordered it accordingly.[733]

This resolution was decisive as to the continuance of ordinary

judicial business beyond the termination of a session. It was still

open to dispute whether it might not abate by a dissolution. And the

peculiar case of impeachment, to which, after the dissolution of the

long parliament in 1678, every one's attention was turned, seemed to

stand on different grounds. It was referred therefore to the committee

of privileges, on the 11th of March 1679, to consider whether

petitions of appeal which were presented to this house in the last

parliament be still in force to be proceeded on. Next day it is

referred to the same committee, on a report of the matter of fact as

to the impeachments of the Earl of Danby and the five popish lords in

the late parliament, to consider of the state of the said impeachments

and all the incidents relating thereto, and to report to the house. On

the 18th of March Lord Essex reported from the committee, that, "upon

perusal of the judgment of this house of the 29th of March 1673, they

are of opinion, that in all cases of appeals and writs of error they

continue, and are to be proceeded on, in statu quo, as they stood at

the dissolution of the last parliament, without beginning de novo....

And, upon consideration had of the matter referred to their lordships

concerning the state of the impeachments brought up from the House of

Commons the last parliament, etc.... they are of opinion that the

dissolution of the last parliament doth not alter the state of the

impeachments brought up by the Commons in that parliament." This

report was taken into consideration next day by the house; and after a

debate, which appears from the journals to have lasted some time, and

the previous question moved and lost, it was resolved to agree with

the committee.[734]

This resolution became for some years the acknowledged law of

parliament. Lord Stafford, at his trial in 1680, having requested that

his counsel might be heard as to the point, whether impeachments could

go from one parliament to another, the house took no notice of this

question; though they consulted the judges about another which he had

put, as to the necessity of two witnesses to every overt act of

treason.[735] Lord Danby and Chief-Justice Scroggs petitioned the

Lords in the Oxford parliament, one to have the charges against him

dismissed, the other to be bailed; but neither take the objection of

an intervening dissolution.[736] And Lord Danby, after the

dissolution of three successive parliaments since that in which he

was impeached, having lain for three years in the Tower, when he

applied to be enlarged on bail by the court of king's bench in 1682,

was refused by the judges, on the ground of their incompetency to

meddle in a parliamentary impeachment; though, if the prosecution were

already at an end, he would have been entitled to an absolute

discharge. On Jefferies becoming chief justice of the king's bench,

Danby was admitted to bail.[737] But in the parliament of 1685, the

impeached lords having petitioned the house, it was resolved, that the

order of the 19th of March 1679 be reversed and annulled as to

impeachments; and they were consequently released from their

recognisances.[738]

The first of these two contradictory determinations is not certainly

free from that reproach which so often contaminates our precedents of

parliamentary law, and renders an honest man reluctant to show them

any greater deference than is strictly necessary. It passed during the

violent times of the popish plot; and a contrary resolution would have

set at liberty the five catholic peers committed to the Tower, and

enabled them probably to quit the kingdom before a new impeachment

could be preferred. It must be acknowledged, at the same time, that it

was borne out, in a considerable degree, by the terms of the order of

1673, which seems liable to no suspicion of answering a temporary

purpose; and that the court party in the House of Lords were powerful

enough to have withstood any flagrant innovation in the law of

parliament. As for the second resolution, that of 1685, which reversed

the former, it was passed in the very worst of times; and, if we may

believe the protest, signed by the Earl of Anglesea and three other

peers, with great precipitation and neglect of usual forms. It was not

however annulled after the revolution; but, on the contrary, received

what may seem at first sight a certain degree of confirmation, from an

order of the House of Lords in 1690, on the petitions of Lords

Salisbury and Peterborough, who had been impeached in the preceding

parliament, to be discharged; which was done after reading the

resolutions of 1679 and 1685, and a long debate thereon. But as a

general pardon had come out in the meantime, by which the judges held

that the offences imputed to these two lords had been discharged, and

as the Commons showed no disposition to follow up their impeachment

against them, no parliamentary reasoning can perhaps be founded on

this precedent.[739] In the case of the Duke of Leeds, impeached by

the Commons in 1695, no further proceedings were had; but the Lords

did not make an order for his discharge from the accusation till five

years after three dissolutions had intervened; and grounded it upon

the Commons not proceeding with the impeachment. They did not however

send a message to enquire if the Commons were ready to proceed, which,

according to parliamentary usage, would be required in case of a

pending impeachment. The cases of Lords Somers, Orford, and Halifax,

were similar to that of the Duke of Leeds, except that so long a

period did not intervene. These instances therefore rather tend to

confirm the position, that impeachments did not ipso facto abate by a

dissolution, notwithstanding the reversal of the order of 1679. In the

case of the Earl of Oxford, it was formally resolved in 1717, that an

impeachment does not determine by a prorogation of parliament; an

authority conclusive to those who maintain that no difference exists

in the law of parliament between the effects of a prorogation and a

dissolution. But it is difficult to make all men consider this

satisfactory.

The question came finally before both houses of parliament in 1791, a

dissolution having intervened during the impeachment of Mr. Hastings;

an impeachment which, far unlike the rapid proceedings of former ages,

had already been for three years before the House of Lords, and seemed

likely to run on to an almost interminable length. It must have been

abandoned in despair, if the prosecution had been held to determine by

the late dissolution. The general reasonings, and the force of

precedents on both sides, were urged with great ability, and by the

principal speakers in both houses; the lawyers generally inclining to

maintain the resolution of 1685, that impeachments abate by a

dissolution, but against still greater names which were united on the

opposite side. In the end, after an ample discussion, the continuance

of impeachments, in spite of a dissolution, was carried by very large

majorities; and this decision, so deliberately taken, and so free from

all suspicion of partiality (the majority in neither house,

especially the upper, bearing any prejudice against the accused

person), as well as so consonant to principles of utility and

constitutional policy, must for ever have set at rest all dispute upon

the question.

_Popish plot._--The year 1678, and the last session of the parliament

that had continued since 1661, were memorable for the great national

delusion of the popish plot. For national it was undoubtedly to be

called, and by no means confined to the whig or opposition party,

either in or out of parliament, though it gave them much temporary

strength. And though it were a most unhappy instance of the credulity

begotten by heated passions and mistaken reasoning, yet there were

circumstances, and some of them very singular in their nature, which

explain and furnish an apology for the public error, and which it is

more important to point out and keep in mind, than to inveigh, as is

the custom in modern times, against the factitiousness and bigotry of

our ancestors. For I am persuaded that we are far from being secure

from similar public delusions, whenever such a concurrence of

coincidences and seeming probabilities shall again arise, as misled

nearly the whole people of England in the popish plot.[740]

_Coleman's letters._--It is first to be remembered that there was

really and truly a popish plot in being, though not that which Titus

Oates and his associates pretended to reveal--not merely in the sense

of Hume, who, arguing from the general spirit of proselytism in that

religion, says there is a perpetual conspiracy against all

governments, protestant, Mahometan, and pagan, but one alert,

enterprising, effective, in direct operation against the established

protestant religion in England. In this plot the king, the Duke of

York, and the King of France were chief conspirators; the Romish

priests, and especially the jesuits, were eager co-operators. Their

machinations and their hopes, long suspected, and in a general sense

known, were divulged by the seizure and publication of Coleman's

letters. "We have here," he says, in one of these, "a mighty work upon

our hands, no less than the conversion of three kingdoms, and by that

perhaps the utter subduing of a pestilent heresy, which has a long

time domineered over this northern world. There were never such hopes

since the death of our queen Mary as now in our days. God has given

us a prince, who is become (I may say by miracle) zealous of being the

author and instrument of so glorious a work; but the opposition we are

sure to meet with is also like to be great; so that it imports us to

get all the aid and assistance we can." These letters were addressed

to Father la Chaise, confessor of Louis XIV., and displayed an

intimate connection with France for the great purpose of restoring

popery. They came to light at the very period of Oates's discovery;

and though not giving it much real confirmation, could hardly fail to

make a powerful impression on men unaccustomed to estimate the value

and bearings of evidence.[741]

The conspiracy supposed to have been concerted by the jesuits at St.

Omers, and in which so many English catholics were implicated, chiefly

consisted, as is well known, in a scheme of assassinating the king.

Though the obvious falsehood and absurdity of much that the witnesses

deposed in relation to this plot render it absolutely incredible, and

fully acquit those unfortunate victims of iniquity and prejudice, it

could not appear at the time an extravagant supposition, that an eager

intriguing faction should have considered the king's life a serious

obstacle to their hopes. Though as much attached in heart as his

nature would permit to the catholic religion, he was evidently not

inclined to take any effectual measures in its favour; he was but one

year older than his brother, on the contingency of whose succession

all their hopes rested, since his heiress was not only brought up in

the protestant faith, but united to its most strenuous defender.

Nothing could have been more anxiously wished at St. Omers than the

death of Charles; and it does not seem improbable that the atrocious

fictions of Oates may have been originally suggested by some actual,

though vague, projects of assassination, which he had heard in

discourse among the ardent spirits of that college.

_Murder of Sir Edmondbury Godfrey._--The popular ferment which this

tale, however undeserving of credit, excited in a predisposed

multitude, was naturally wrought to a higher pitch by the very

extraordinary circumstances of Sir Edmondbury Godfrey's death. Even at

this time, although we reject the imputation thrown on the catholics,

and especially on those who suffered death for that murder, it seems

impossible to frame any hypothesis which can better account for the

facts that seem to be authenticated. That he was murdered by those who

designed to lay the charge on the papists, and aggravate the public

fury, may pass with those who rely on such writers as Roger

North,[742] but has not the slightest corroboration from any evidence;

nor does it seem to have been suggested by the contemporary libellers

of the court party. That he might have had, as an active magistrate,

private enemies, whose revenge took away his life, which seems to be

Hume's conjecture, is hardly more satisfactory; the enemies of a

magistrate are not likely to have left his person unplundered, nor is

it usual for justices of the peace, merely on account of the discharge

of their ordinary duties, to incur such desperate resentment. That he

fell by his own hands was doubtless the suggestion of those who aimed

at discrediting the plot; but it is impossible to reconcile this with

the marks of violence which are so positively sworn to have appeared

on his neck; and, on a later investigation of the subject in the year

1682, when the court had become very powerful, and a belief in the

plot had grown almost a mark of disloyalty, an attempt made to prove

the self-murder of Godfrey, in a trial before Pemberton, failed

altogether; and the result of the whole evidence, on that occasion,

was strongly to confirm the supposition that he had perished by the

hands of assassins.[743] His death remains at this moment a problem

for which no tolerably satisfactory solution can be offered. But at

the time, it was a very natural presumption to connect it with the

plot, wherein he had not only taken the deposition of Oates, a

circumstance not in itself highly important, but was supposed to have

received the confidential communications of Coleman.[744]

Another circumstance, much calculated to persuade ordinary minds of

the truth of the plot, was the trial of Reading, a Romish attorney,

for tampering with the witnesses against the accused catholic peers,

in order to make them keep out of the way.[745] As such clandestine

dealing with witnesses creates a strong, and perhaps with some too

strong a presumption of guilt, where justice is sure to be uprightly

administered, men did not make a fair distinction as to times when the

violence of the court and jury gave no reasonable hope of escape; and

when the most innocent party would much rather procure the absence of

a perjured witness than trust to the chance of disproving his

testimony.

_Injustice of judges on the trials._--There was indeed good reason to

distrust the course of justice. Never were our tribunals so disgraced

by the brutal manners and iniquitous partiality of the bench as in the

latter years of this reign. The _State Trials_, none of which appear

to have been published by the prisoners' friends, bear abundant

testimony to the turpitude of the judges. They explained away and

softened the palpable contradictions of the witnesses for the Crown,

insulted and threatened those of the accused, checked all

cross-examination, assumed the truth of the charge throughout the

whole of every trial.[746] One Whitbread, a jesuit, having been

indicted with several others, and the evidence not being sufficient,

Scroggs discharged the jury of him, but ordered him to be kept in

custody till more proof might come in. He was accordingly indicted

again for the same offence. On his pleading that he had been already

tried, Scroggs and North had the effrontery to deny that he had been

ever put in jeopardy, though the witnesses for the Crown had been

fully heard before the jury were most irregularly and illegally

discharged of him on the former trial. North said he had often known

it done, and it was the common course of law. In the course of this

proceeding, Bedloe, who had deposed nothing explicit against the

prisoner on the former trial, accounted for this by saying, it was not

then convenient; an answer with which the court and jury were

content.[747]

It is remarkable that, although the king might be justly surmised to

give little credence to the pretended plot, and the Duke of York was

manifestly affected in his interests by the heats it excited, yet the

judges most subservient to the court, Scroggs, North, Jones, went with

all violence into the popular cry, till, the witnesses beginning to

attack the queen, and to menace the duke, they found it was time to

rein in, as far as they could, the passions they had instigated.[748]

Pemberton, a more honest man in political matters, showed a remarkable

intemperance and unfairness in all trials relating to popery. Even in

that of Lord Stafford in 1680, the last, and perhaps the worst,

proceeding under this delusion, though the court had a standing

majority in the House of Lords, he was convicted by fifty-five peers

against thirty-one; the Earl of Nottingham, lord chancellor, the Duke

of Lauderdale, and several others of the administration voting him

guilty, while he was acquitted by the honest Hollis and the acute

Halifax.[749] So far was the belief in the popish plot, or the

eagerness in hunting its victims to death, from being confined to the

whig faction, as some writers have been willing to insinuate. None had

more contributed to rouse the national outcry against the accused, and

create a firm persuasion of the reality of the plot, than the clergy

in their sermons, even the most respectable of their order, Sancroft,

Sharp, Barlow, Burnet, Tillotson, Stillingfleet; inferring its truth

from Godfrey's murder or Coleman's letters, calling for the severest

laws against catholics, and imputing to them the fire of London, nay,

even the death of Charles I.[750]

_Exclusion of Duke of York proposed._--Though the Duke of York was not

charged with participation in the darkest schemes of the popish

conspirators, it was evident that his succession was the great aim of

their endeavours, and evident also that he had been engaged in the

more real and undeniable intrigues of Coleman. His accession to the

throne, long viewed with just apprehension, now seemed to threaten

such perils to every part of the constitution, as ought not supinely

to be waited for, if any means could be devised to obviate them. This

gave rise to the bold measure of the exclusion bill, too bold indeed

for the spirit of the country, and the rock on which English liberty

was nearly shipwrecked. In the long parliament, full as it was of

pensioners and creatures of court influence, nothing so vigorous would

have been successful. Even in the bill which excluded catholic peers

from sitting in the House of Lords, a proviso, exempting the Duke of

York from its operation, having been sent down from the other house,

passed by a majority of two voices.[751] But the zeal they showed

against Danby induced the king to put an end to this parliament of

seventeen years' duration; an event long ardently desired by the

popular party, who foresaw their ascendancy in the new elections.[752]

The next House of Commons accordingly came together with an ardour

not yet quenched by corruption; and after reviving the impeachments

commenced by their predecessors, and carrying a measure long in

agitation, a test[753] which shut the catholic peers out of

parliament, went upon the exclusion bill. Their dissolution put a stop

to this; and in the next parliament the Lords rejected it.[754]

The right of excluding an unworthy heir from the succession was

supported not only by the plain and fundamental principles of civil

society, which establish the interest of the people to be the

paramount object of political institutions, but by those of the

English constitution. It had always been the better opinion among

lawyers, that the reigning king with consent of parliament was

competent to make any changes in the inheritance of the Crown; and

this, besides the acts passed under Henry VIII. empowering him to name

his successor, was expressly enacted, with heavy penalties against

such as should contradict it, in the thirteenth year of Elizabeth. The

contrary doctrine indeed, if pressed to its legitimate consequences,

would have shaken all the statutes that limit the prerogative; since,

if the analogy of entails in private inheritances were to be resorted

to, and the existing legislature should be supposed incompetent to

alter the line of succession, they could as little impair as they

could alienate the indefeasible rights of the heir; nor could he be

bound by restrictions to which he had never given his assent. It

seemed strange to maintain that the parliament could reduce a king of

England to the condition of a doge of Venice, by shackling and taking

away his authority, and yet could not divest him of a title which they

could render little better than a mockery. Those accordingly who

disputed the legislative omnipotence of parliament did not hesitate to

assert that statutes infringing on the prerogative were null of

themselves. With the court lawyers conspired the clergy, who pretended

these matters of high policy and constitutional law to be within their

province; and, with hardly an exception, took a zealous part against

the exclusion. It was indeed a measure repugnant to the common

prejudices of mankind; who, without entering on the abstract

competency of parliament, are naturally accustomed in an hereditary

monarchy to consider the next heir as possessed of a right, which,

except through necessity, or notorious criminality, cannot be justly

divested. The mere profession of a religion different from the

established, does not seem, abstractedly considered, an adequate

ground for unsettling the regular order of inheritance. Yet such was

the narrow bigotry of the sixteenth and seventeenth centuries, which

died away almost entirely among protestants in the next, that even the

trifling differences between Lutherans and Calvinists had frequently

led to alternate persecutions in the German states, as a prince of one

or the other denomination happened to assume the government. And the

Romish religion, in particular, was in that age of so restless and

malignant a character, that unless the power of the Crown should be

far more strictly limited than had hitherto been the case, there must

be a very serious danger from any sovereign of that faith; and the

letters of Coleman, as well as other evidences, made it manifest that

the Duke of York was engaged in a scheme of general conversion, which,

from his arbitrary temper and the impossibility of succeeding by fair

means, it was just to apprehend, must involve the subversion of all

civil liberty. Still this was not distinctly perceived by persons at a

distance from the scene, imbued, as most of the gentry were, with the

principles of the old cavaliers, and those which the church had

inculcated. The king, though hated by the dissenters, retained the

affections of that party, who forgave the vices they deplored, to his

father's memory and his personal affability. It appeared harsh and

disloyal to force his consent to the exclusion of a brother in whom he

saw no crime, and to avoid which he offered every possible

expedient.[755] There will always be found in the people of England a

strong unwillingness to force the reluctance of their sovereign--a

latent feeling, of which parties in the heat of their triumphs are

seldom aware, because it does not display itself until the moment of

reaction. And although, in the less settled times before the

revolution, this personal loyalty was highly dangerous, and may still,

no doubt, sometimes break out so as to frustrate objects of high

import to the public weal, it is on the whole a salutary temper for

the conservation of the monarchy, which may require such a barrier

against the encroachments of factions and the fervid passions of the

multitude.

_Schemes of Shaftesbury and Monmouth._--The bill of exclusion was

drawn with as much regard to the inheritance of the Duke of York's

daughters as they could reasonably demand, or as any lawyer engaged

for them could have shown; though something different seems to be

insinuated by Burnet. It provided that the imperial crown of England

should descend to and be enjoyed by such person or persons

successively during the life of the Duke of York, as should have

inherited or enjoyed the same in case he were naturally dead. If the

Princess of Orange was not expressly named (which, the bishop tells

us, gave a jealousy, as though it were intended to keep that matter

still undetermined), this silence was evidently justified by the

possible contingency of the birth of a son to the duke, whose right

there was no intention in the framers of the bill to defeat. But a

large part of the opposition had unfortunately other objects in view.

It had been the great error of those who withstood the arbitrary

counsels of Charles II. to have admitted into their closest

confidence, and in a considerable degree to the management of their

party, a man so destitute of all honest principle as the Earl of

Shaftesbury. Under his contaminating influence their passions became

more untractable, their connections more seditious and democratical,

their schemes more revolutionary, and they broke away more and more

from the line of national opinion, till a fatal reaction involved

themselves in ruin, and exposed the cause of public liberty to its

most imminent peril. The countenance and support of Shaftesbury

brought forward that unconstitutional and most impolitic scheme of the

Duke of Monmouth's succession. There could hardly be a greater insult

to a nation used to respect its hereditary line of kings, than to set

up the bastard of a prostitute, without the least pretence of personal

excellence or public services, against a princess of known virtue and

attachment to the protestant religion. And the effrontery of this

attempt was aggravated by the libels eagerly circulated to dupe the

credulous populace into a belief of Monmouth's legitimacy. The weak

young man, lured on to destruction by the arts of intriguers and the

applause of the multitude, gave just offence to sober-minded patriots,

who knew where the true hopes of public liberty were anchored, by a

kind of triumphal procession through parts of the country, and by

other indications of a presumptuous ambition.[756]

_Unsteadiness of the king._--If any apology can be made for the

encouragement given by some of the whig party (for it was by no means

general) to the pretensions of Monmouth, it must be found in their

knowledge of the king's affection for him, which furnished a hope that

he might more easily be brought in to the exclusion of his brother for

the sake of so beloved a child than for the Prince of Orange. And

doubtless there was a period when Charles's acquiescence in the

exclusion did not appear so unattainable as, from his subsequent line

of behaviour, we are apt to consider it. It appears from the recently

published life of James, that in the autumn of 1680 the embarrassment

of the king's situation, and the influence of the Duchess of

Portsmouth, who had gone over to the exclusionists, made him seriously

deliberate on abandoning his brother.[757] Whether from natural

instability of judgment, from the steady adherence of France to the

Duke of York, or from observing the great strength of the tory party

in the House of Lords, where the bill was rejected by a majority of 63

to 30, he soon returned to his former disposition. It was long however

before he treated James with perfect cordiality. Conscious of his own

insincerity in religion, which the duke's bold avowal of an obnoxious

creed seemed to reproach, he was provoked at bearing so much of the

odium, and incurring so many of the difficulties, which attended a

profession that he had not ventured to make. He told Hyde, before the

dissolution of the parliament in 1680, that it would not be in his

power to protect his brother any longer, if he did not conform and go

to church.[758] Hyde himself, and the duke's other friends, had never

ceased to urge him on this subject. Their importunity was renewed by

the king's order, even after the dissolution of the Oxford parliament;

and it seems to have been the firm persuasion of most about the court

that he could only be preserved by conformity to the protestant

religion. He justly apprehended the consequences of a refusal; but,

inflexibly conscientious on this point, he braved whatever might arise

from the timidity or disaffection of the ministers and the selfish

fickleness of the king.

In the apprehensions excited by the king's unsteadiness and the

defection of the Duchess of Portsmouth, he deemed his fortunes so much

in jeopardy, as to have resolved on exciting a civil war, rather than

yield to the exclusion. He had already told Barillon that the royal

authority could be re-established by no other means.[759] The

episcopal party in Scotland had gone such lengths that they could

hardly be safe under any other king. The catholics of England were of

course devoted to him. With the help of these he hoped to show himself

so formidable that Charles would find it his interest to quit that

cowardly line of politics, to which he was sacrificing his honour and

affections. Louis, never insensible to any occasion of rendering

England weak and miserable, directed his ambassador to encourage the

duke in this guilty project with the promise of assistance.[760] It

seems to have been prevented by the wisdom or public spirit of

Churchill, who pointed out to Barillon the absurdity of supposing that

the duke could stand by himself in Scotland. This scheme of lighting

up the flames of civil war in three kingdoms, for James's private

advantage, deserves to be more remarked than it has hitherto been at a

time when the apologists seem to have become numerous. If the designs

of Russell and Sidney for the preservation of their country's liberty

are blamed as rash and unjustifiable, what name shall we give to the

project of maintaining the pretensions of an individual by means of

rebellion and general bloodshed?

It is well known that those who took a concern in the maintenance of

religion and liberty, were much divided as to the best expedients for

securing them; some, who thought the exclusion too violent, dangerous,

or impracticable, preferring the enactment of limitations on the

prerogatives of a catholic king. This had begun in fact from the

court, who passed a bill through the House of Lords in 1677, for the

security, as it was styled, of the protestant religion. This provided

that a declaration and oath against transubstantiation should be

tendered to every king within fourteen days after his accession; that,

on his refusal to take it, the ecclesiastical benefices in the gift of

the Crown should vest in the bishops, except that the king should name

to every vacant see one out of three persons proposed to him by the

bishops of the province. It enacted also, that the children of a king

refusing such a test should be educated by the archbishop and two or

three more prelates. This bill dropped in the Commons; and Marvell

speaks of it as an insidious stratagem of the ministry.[761] It is

more easy, however, to give hard names to a measure originating with

an obnoxious government, than to prove that it did not afford a

considerable security to the established church, and impose a very

remarkable limitation on the prerogative. But the opposition in the

House of Commons had probably conceived their scheme of exclusion, and

would not hearken to any compromise. As soon as the exclusion became

the topic of open discussion, the king repeatedly offered to grant

every security that could be demanded consistently with the lineal

succession. Hollis, Halifax, and for a time Essex, as well as several

eminent men in the lower house, were in favour of limitations.[762]

But those which they intended to insist upon were such encroachments

on the constitutional authority of the Crown, that, except a title and

revenue, which Charles thought more valuable than all the rest, a

popish king would enjoy no one attribute of royalty. The king himself,

on the 30th of April 1679, before the heats on the subject had become

so violent as they were the next year, offered not only to secure all

ecclesiastical preferments from the control of a popish successor, but

to provide that the parliament in being at a demise of the Crown or

the last that had been dissolved, should immediately sit and be

indissoluble for a certain time; that none of the privy council, nor

judges, lord lieutenant, deputy lieutenant, nor officer of the navy,

should be appointed during the reign of a catholic king, without

consent of parliament. He offered at the same time most readily to

consent to any further provision that could occur to the wisdom of

parliament for the security of religion and liberty consistently with

the right of succession. Halifax, the eloquent and successful opponent

of the exclusion, was the avowed champion of limitations. It was

proposed, in addition to these offers of the king, that the duke, in

case of his accession, should have no negative voice on bills; that he

should dispose of no civil or military posts without consent of

parliament; that a council of forty-one, nominated by the two houses,

should sit permanently during the recess or interval of parliament,

with power of appointing to all vacant offices, subject to the future

approbation of the Lords and Commons.[763] These extraordinary

innovations would, at least for the time, have changed our

constitution into a republic; and justly appeared to many persons more

revolutionary than an alteration in the course of succession. The Duke

of York looked on them with dismay; Charles indeed privately declared

that he would never consent to such infringements of the

prerogative.[764] It is not however easy to perceive how he could have

escaped from the necessity of adhering to his own propositions, if the

House of Commons would have relinquished the bill of exclusion. The

Prince of Orange, who was doubtless in secret not averse to the latter

measure, declared strongly against the plan of restrictions, which a

protestant successor might not find it practicable to shake off.

Another expedient, still more ruinous to James than that of

limitations, was what the court itself suggested in the Oxford

parliament, that the duke retaining the title of king, a regent should

be appointed, in the person of the Princess of Orange, with all the

royal prerogatives; nay, that the duke, with his pageant crown on his

head, should be banished from England during his life.[765] This

proposition, which is a great favourite with Burnet, appears liable to

the same objections as were justly urged against a similar scheme at

the revolution. It was certain that in either case James would attempt

to obtain possession of power by force of arms; and the law of England

would not treat very favourably those who should resist an

acknowledged king in his natural capacity, while the statute of Henry

VII. would, legally speaking, afford a security to the adherents of a

_de facto_ sovereign.

Upon the whole, it is very unlikely, when we look at the general

spirit and temper of the nation, its predilection for the ancient

laws, its dread of commonwealth and fanatical principles, the tendency

of the upper ranks to intrigue and corruption, the influence and

activity of the church, the bold counsels and haughty disposition of

James himself, that either the exclusion, or such extensive

limitations as were suggested in lieu of it, could have been carried

into effect with much hope of a durable settlement. It would, I should

conceive, have been practicable to secure the independence of the

judges, to exclude unnecessary placemen and notorious pensioners from

the House of Commons, to render the distribution of money among its

members penal, to remove from the protestant dissenters, by a full

toleration, all temptation to favour the court, and, above all, to put

down the standing army. Though none perhaps of these provisions would

have prevented the attempts of this and the next reign to introduce

arbitrary power, they would have rendered them still more grossly

illegal; and, above all, they would have saved that unhappy revolution

of popular sentiment which gave the court encouragement and temporary

success.

_Names of Whig and Tory._--It was in the year 1679, that the words

Whig and Tory first were heard in their application to English

factions; and, though as senseless as any cant terms that could be

devised, they became instantly as familiar in use as they have since

continued. There were then indeed questions in agitation, which

rendered the distinction more broad and intelligible than it has

generally been in later times. One of these, and the most important,

was the bill of exclusion; in which, as it was usually debated, the

republican principle, that all positive institutions of society are in

order to the general good, came into collision with that of monarchy,

which rests on the maintenance of a royal line, as either the end, or

at least the necessary means, of lawful government. But, as the

exclusion was confessedly among those extraordinary measures, to which

men of tory principles are sometimes compelled to resort in great

emergencies, and which no rational whig espouses at any other time, we

shall better perhaps discern the formation of these grand political

sects in the petitions for the sitting of parliament, and in the

counter addresses of the opposite party.

_New council formed by Sir William Temple._--In the spring of 1679,

Charles established a new privy council, by the advice of Sir William

Temple, consisting in great part of those eminent men in both houses

of parliament, who had been most prominent in their opposition to the

late ministry.[766] He publicly declared his resolution to govern

entirely by the advice of this council and that of parliament. The

Duke of York was kept in what seemed a sort of exile at Brussels.[767]

But the just suspicion attached to the king's character prevented the

Commons from placing much confidence in this new ministry; and, as

frequently happens, abated their esteem for those who, with the purest

intentions, had gone into the council.[768] They had soon cause to

perceive that their distrust had not been excessive. The ministers

were constantly beaten in the House of Lords; an almost certain test,

in our government, of the court's insincerity.[769]

_Long prorogation of parliament._--The parliament was first prorogued,

then dissolved; against the advice, in the latter instance, of the

majority of that council by whom the king had pledged himself to be

directed. A new parliament, after being summoned to meet in October

1679, was prorogued for a twelve-month without the avowed concurrence

of any member of the council. Lord Russell, and others of the honester

party, withdrew from a board where their presence was only asked in

mockery or deceit; and the whole specious scheme of Temple came to

nothing before the conclusion of the year which had seen it

displayed.[770] Its author, chagrined at the disappointment of his

patriotism and his vanity, has sought the causes of failure in the

folly of Monmouth and perverseness of Shaftesbury. He was not aware,

at least in their full extent, of the king's intrigues at this period.

Charles, who had been induced to take those whom he most disliked into

his council, with the hope of obtaining money from parliament, or of

parrying the exclusion bill, and had consented to the Duke of York's

quitting England, found himself enthralled by ministers whom he could

neither corrupt nor deceive; Essex, the firm and temperate friend of

constitutional liberty in power as he had been out of it, and Halifax,

not yet led away by ambition or resentment from the cause he never

ceased to approve. He had recourse therefore to his accustomed refuge,

and humbly implored the aid of Louis against his own council and

parliament. He conjured his patron not to lose this opportunity of

making England for ever dependent upon France. These are his own

words, such at least as Barillon attributes to him.[771] In pursuance

of this overture, a secret treaty was negotiated between the two

kings; whereby, after long haggling, Charles, for a pension of

1,000,000 livres annually during three years, obliged himself not to

assemble parliament during that time. This negotiation was broken off,

through the apprehensions of Hyde and Sunderland who had been

concerned in it, about the end of November 1679, before the long

prorogation which is announced in the _Gazette_ by a proclamation of

December 11th. But, the resolution having been already taken not to

permit the meeting of parliament, Charles persisted in it as the only

means of escaping the bill of exclusion, even when deprived of the

pecuniary assistance to which he had trusted.

Though the king's behaviour on this occasion exposed the fallacy of

all projects for reconciliation with the House of Commons, it was very

well calculated for his own ends; nor was there any part of his reign

wherein he acted with so much prudence, as from this time to the

dissolution of the Oxford parliament. The scheme concerted by his

adversaries, and already put in operation, of pouring in petitions

from every part of the kingdom for the meeting of parliament, he

checked in the outset by a proclamation, artfully drawn up by

Chief-Justice North; which, while it kept clear of anything so

palpably unconstitutional as a prohibition of petitions, served the

purpose of manifesting the king's dislike to them, and encouraged the

magistrates to treat all attempts that way as seditious and illegal,

while it drew over the neutral and lukewarm to the safer and stronger

side.[772] Then were first ranged against each other the hosts of whig

and tory, under their banners of liberty or loyalty; each zealous, at

least in profession, to maintain the established constitution, but the

one seeking its security by new maxims of government, the other by an

adherence to the old.

_Petitions and addresses._--It must be admitted that petitions to the

king from bodies of his subjects, intended to advise or influence him

in the exercise of his undoubted prerogatives, such as the time of

calling parliament together, familiar as they may now have become, had

no precedent, except one in the dark year 1640, and were repugnant to

the ancient principles of our monarchy. The cardinal maxim of toryism

is, that the king ought to exercise all his lawful prerogatives

without the interference, or unsolicited advice, even of parliament,

much less of the people. These novel efforts therefore were met by

addresses from most of the grand juries, from the magistrates at

quarter sessions, and from many corporations, expressing not merely

their entire confidence in the king, but their abhorrence of the

petitions for the assembling of parliament; a term which, having been

casually used in one address, became the watchword of the whole

party.[773] Some allowance must be made for the exertions made by the

court, especially through the judges of assize, whose charges to grand

juries were always of a political nature. Yet there can be no doubt

that the strength of the tories manifested itself beyond expectation.

Sluggish and silent in its fields, like the animal which it has taken

for its type, the deep-rooted loyalty of the English gentry to the

Crown may escape a superficial observer, till some circumstance calls

forth an indignant and furious energy. The temper shown in 1680 was

not according to what the late elections would have led men to expect,

not even to that of the next elections for the parliament at Oxford. A

large majority returned on both these occasions, and that in the

principal counties as much as in corporate towns, were of the whig

principle. It appears that the ardent zeal against popery in the

smaller freeholders must have overpowered the natural influence of the

superior classes. The middling and lower orders, particularly in

towns, were clamorous against the Duke of York and the evil

counsellors of the Crown. But with the country gentlemen, popery was

scarce a more odious word than fanaticism; the memory of the late

reign and of the usurpation was still recent, and in the violence of

the Commons, in the insolence of Monmouth and Shaftesbury, in the bold

assaults upon hereditary right, they saw a faint image of that

confusion which had once impoverished and humbled them. Meanwhile the

king's dissimulation was quite sufficient for these simple loyalists;

the very delusion of the popish plot raised his name for religion in

their eyes, since his death was the declared aim of the conspirators;

nor did he fail to keep alive this favourable prejudice by letting

that imposture take its course, and by enforcing the execution of the

penal laws against some unfortunate priests.[774]

_Violence of the Commons._--It is among the great advantages of a

court in its contention with the asserters of popular privileges, that

it can employ a circumspect and dissembling policy, which is never

found on the opposite side. The demagogues of faction, or the

aristocratic leaders of a numerous assembly, even if they do not feel

the influence of the passions they excite, which is rarely the case,

are urged onwards by their headstrong followers, and would both lay

themselves open to the suspicion of unfaithfulness and damp the spirit

of their party, by a wary and temperate course of proceeding. Yet that

incautious violence, to which ill-judging men are tempted by the

possession of power, must in every case, and especially where the

power itself is deemed an usurpation, cast them headlong. This was the

fatal error of that House of Commons which met in October 1680; and to

this the king's triumph may chiefly be ascribed. The addresses

declaratory of abhorrence of petitions for the meeting of parliament

were doubtless intemperate with respect to the petitioners; but it was

preposterous to treat them as violations of privilege. A few

precedents, and those in times of much heat and irregularity, could

not justify so flagrant an encroachment on the rights of the private

subject, as the commitments of men for a declaration so little

affecting the constitutional rights and functions of parliament.[775]

The expulsion of Withens, their own member, for promoting one of these

addresses, though a violent measure, came in point of law within their

acknowledged authority.[776] But it was by no means a generally

received opinion in that age that the House of Commons had an

unbounded jurisdiction, directly or indirectly, over their

constituents. The lawyers, being chiefly on the side of prerogative,

inclined at least to limit very greatly this alleged power of

commitment for breach of privilege or contempt of the house. It had

very rarely, in fact, been exerted, except in cases of serving legal

process on members or other molestation, before the long parliament of

Charles I.; a time absolutely discredited by one party, and confessed

by every reasonable man to be full of innovation and violence. That

the Commons had no right of judicature was admitted; was it compatible

to principles of reason and justice, that they could, merely by using

the words contempt or breach of privilege in a warrant, deprive the

subject of that liberty which the recent statute of habeas corpus had

secured against the highest ministers of the Crown? Yet one Thompson,

a clergyman at Bristol, having preached some virulent sermons, wherein

he had traduced the memory of Hampden for refusing the payment of

ship-money, and spoken disrespectfully of Queen Elizabeth, as well as

insulted those who petitioned for the sitting of parliament, was sent

for in custody of the serjeant to answer at the bar for his high

misdemeanour against the privileges of that house; and was afterwards

compelled to find security for his forthcoming to answer to an

impeachment voted against him on these strange charges.[777] Many

others were brought to the bar, not only for the crime of abhorrence,

but for alleged misdemeanours still less affecting the privileges of

parliament, such as remissness in searching for papists. Sir Robert

Cann, of Bristol, was sent for in custody of the serjeant-at-arms, for

publicly declaring that there was no popish, but only a presbyterian

plot. A general panic, mingled with indignation, was diffused through

the country, till one Stawell, a gentleman of Devonshire, had the

courage to refuse compliance with the speaker's warrant; and the

Commons, who hesitated at such a time to risk an appeal to the

ordinary magistrates, were compelled to let this contumacy go

unpunished. If indeed we might believe the journals of the house,

Stawell was actually in custody of the serjeant, though allowed a

month's time on account of sickness. This was most probably a

subterfuge to conceal the truth of the case.[778]

These encroachments under the name of privilege were exactly in the

spirit of the long parliament, and revived too forcibly the

recollection of that awful period. It was commonly in men's mouths,

that 1641 was come about again. There appeared indeed for several

months a very imminent danger of civil war. I have already mentioned

the projects of the Duke of York, in case his brother had given way to

the exclusion bill. There could be little reason to doubt that many of

the opposite leaders were ready to try the question by arms. Reresby

has related a conversation he had with Lord Halifax immediately after

the rejection of the bill,[779] which shows the expectation of that

able statesman, that the differences about the succession would end

in civil war. The just abhorrence good men entertain for such a

calamity excites their indignation against those who conspicuously

bring it on. And, however desirous some of the court might be to

strengthen the prerogative by quelling a premature rebellion, the

Commons were, in the eyes of the nation, far more prominent in

accelerating so terrible a crisis. Their votes in the session of

November 1680 were marked by the most extravagant factiousness.[780]

_Oxford parliament._--Their conduct in the short parliament held at

Oxford in March 1681, served still more to alienate the peaceable part

of the community. That session of eight days was marked by the

rejection of a proposal to vest all effective power during the Duke of

York's life in a regent, and by an attempt to screen the author of a

treasonable libel from punishment under the pretext of impeaching him

at the bar of the upper house. It seems difficult not to suspect that

the secret instigations of Barillon, and even his gold, had

considerable influence on some of those who swayed the votes of this

parliament.

_Impeachment of commoners for treason constitutional._--Though the

impeachment of Fitzharris, to which I have just alluded, was in itself

a mere work of temporary faction, it brought into discussion a

considerable question in our constitutional law, which deserves

notice, both on account of its importance, and because a popular

writer has advanced an untenable proposition on the subject. The

Commons impeached this man of high treason. The Lords voted, that he

should be proceeded against at common law. It was resolved, in

consequence, by the lower house, "that it is the undoubted right of

the Commons in parliament assembled, to impeach before the Lords in

parliament any peer or commoner for treason, or any other crime or

misdemeanour: and that the refusal of the Lords to proceed in

parliament upon such impeachment is a denial of justice, and a

violation of the constitution of parliament."[781] It seems indeed

difficult to justify the determination of the Lords. Certainly the

declaration in the case of Sir Simon de Bereford, who having been

accused by the king, in the fourth year of Edward III. before the

Lords, of participating in the treason of Roger Mortimer, that noble

assembly protested, with the assent of the king in full parliament,

that, albeit they had taken upon them, as judges of the parliament in

the presence of the king, to render judgment, yet the peers, who then

were or should be in time to come, were not bound to render judgment

upon others than peers, nor had power to do so; and that the said

judgment thus rendered should never be drawn to example or consequence

in time to come, whereby the said peers of the land might be charged

to judge others than their peers, contrary to the laws of the land;

certainly, I say, this declaration, even if it amounted to a statute,

concerning which there has been some question,[782] was not

necessarily to be interpreted as applicable to impeachments at the

suit of the Commons, wherein the king is no ways a party. There were

several precedents in the reign of Richard II. of such impeachments

for treason. There had been more than one in that of Charles I. The

objection indeed was so novel, that Chief-Justice Scroggs, having been

impeached for treason in the last parliament, though he applied to be

admitted to bail, had never insisted on so decisive a plea to the

jurisdiction. And if the doctrine, adopted by the Lords, were to be

carried to its just consequences, all impeachment of commoners must be

at an end; for no distinction is taken in the above declaration as to

Bereford between treason and misdemeanour. The peers had indeed lost,

except during the session of parliament, their ancient privilege in

cases of misdemeanour, and were subject to the verdict of a jury; but

the principle was exactly the same, and the right of judging commoners

upon impeachment for corruption or embezzlement, which no one called

in question, was as much an exception from the ordinary rules of law

as in the more rare case of high treason. It is hardly necessary to

observe, that the 29th section of Magna Charta, which establishes the

right of trial by jury, is by its express language solely applicable

to the suits of the Crown.

This very dangerous and apparently unfounded theory, broached upon

the occasion of Fitzharris's impeachment by the Earl of Nottingham,

never obtained reception; and was rather intimated than avowed in the

vote of the Lords, that he should be proceeded against at common law.

But after the revolution, the Commons having impeached Sir Adam Blair

and some others of high treason, a committee was appointed to search

for precedents on this subject; and after full deliberation, the House

of Lords came to a resolution, that they would proceed on the

impeachments.[783] The inadvertent position therefore of

Blackstone,[784] that a commoner cannot be impeached for high treason,

is not only difficult to be supported upon ancient authorities, but

contrary to the latest determination of the supreme tribunal.

_Proceedings against Shaftesbury and College._--No satisfactory

elucidation of the strange libel for which Fitzharris suffered death

has yet been afforded. There is much probability in the supposition

that it was written at the desire of some in the court, in order to

cast odium on their adversaries; a very common stratagem of

unscrupulous partisans.[785] It caused an impression unfavourable to

the whigs in the nation. The court made a dexterous use of that

extreme credulity, which has been supposed characteristic of the

English, though it belongs at least equally to every other people.

They seized into their hands the very engines of delusion that had

been turned against them. Those perjured witnesses, whom Shaftesbury

had hallooed on through all the infamy of the popish plot, were now

arrayed in the same court to swear treason and conspiracy against

him.[786] Though he escaped by the resoluteness of his grand jury,

who refused to find a bill of indictment on testimony, which they

professed themselves to disbelieve, and which was probably false; yet

this extraordinary deviation from the usual practice did harm rather

than otherwise to the general cause of his faction. The judges had

taken care that the witnesses should be examined in open court, so

that the jury's partiality, should they reject such positive

testimony, might become glaring. Doubtless it is, in ordinary cases,

the duty of a grand juror to find a bill upon the direct testimony of

witnesses, where they do not contradict themselves or each other, and

where their evidence is not palpably incredible or contrary to his own

knowledge.[787] The oath of that inquest is forgotten, either where

they render themselves, as seems too often the case, the mere

conduit-pipes of accusation, putting a prisoner in jeopardy upon such

slender evidence as does not call upon him for a defence; or where, as

we have sometimes known in political causes, they frustrate the ends

of justice by rejecting indictments which are fully substantiated by

testimony. Whether the grand jury of London, in their celebrated

ignoramus on the indictment preferred against Shaftesbury, had

sufficient grounds for their incredulity, I will not pretend to

determine.[788] There was probably no one man among them, who had not

implicitly swallowed the tales of the same witnesses in the trials for

the plot. The nation however in general, less bigoted, or at least

more honest in their bigotry, than those London citizens, was

staggered by so many depositions to a traitorous conspiracy, in those

who had pretended an excessive loyalty to the king's person.[789] Men

unaccustomed to courts of justice are naturally prone to give credit

to the positive oaths of witnesses. They were still more persuaded,

when, as in the trial of College at Oxford, they saw this testimony

sustained by the approbation of a judge (and that judge a decent

person who gave no scandal), and confirmed by the verdict of a jury.

The gross iniquity practised towards the prisoner in that trial was

not so generally bruited as his conviction.[790] There is in England a

remarkable confidence in our judicial proceedings, in part derived

from their publicity, and partly from the indiscriminate manner in

which jurors are usually summoned. It must be owned that the

administration of the two last Stuarts was calculated to show how

easily this confiding temper might be the dupe of an insidious

ambition.

_Triumph of the court._--The king's declaration of the reasons that

induced him to dissolve the last parliament, being a manifesto against

the late majority of the House of Commons, was read in all churches.

The clergy scarcely waited for this pretext to take a zealous part for

the Crown. Every one knows their influence over the nation in any

cause which they make their own. They seemed to change the war against

liberty into a crusade. They re-echoed from every pulpit the strain of

passive obedience, of indefeasible hereditary right, of the divine

origin and patriarchal descent of monarchy. Now began again the loyal

addresses, more numerous and ardent than in the last year, which

overspread the pages of the _London Gazette_ for many months. These

effusions stigmatise the measures of the three last parliaments,

dwelling especially on their arbitrary illegal votes against the

personal liberty of the subject. Their language is of course not

alike; yet amidst all the ebullitions of triumphant loyalty, it is

easy in many of them to perceive a lurking distrust of the majesty to

which they did homage, insinuated to the reader in the marked

satisfaction with which they allude to the king's promise of calling

frequent parliaments and of governing by the laws.[791]