The whigs, meantime, so late in the heyday of their pride, lay, like

the fallen angels, prostrate upon the fiery lake. The scoffs and gibes

of libellers, who had trembled before the resolutions of the Commons,

were showered upon their heads. They had to fear, what was much worse

than the insults of these vermin, the perjuries of mercenary informers

suborned by their enemies to charge false conspiracies against them,

and sure of countenance from the contaminated benches of justice. The

court, with an artful policy, though with detestable wickedness,

secured itself against its only great danger, the suspicion of popery,

by the sacrifice of Plunket, the titular archbishop of Dublin.[792]

The execution of this worthy and innocent person cannot be said to

have been extorted from the king in a time of great difficulty, like

that of Lord Stafford. He was coolly and deliberately permitted to

suffer death, lest the current of loyalty, still sensitive and

suspicious upon the account of religion, might be somewhat checked in

its course. Yet those who heap the epithets of merciless, inhuman,

sanguinary, on the whig party for the impeachment of Lord Stafford, in

whose guilt they fully believed, seldom mention, without the

characteristic distinction of "good-natured," that sovereign, who

signed the warrant against Plunket, of whose innocence he was

assured.[793]

_Forfeiture of the charter of London, and of other places._--The

hostility of the city of London, and of several other towns, towards

the court, degenerating no doubt into a factious and indecent

violence, gave a pretext for the most dangerous aggression on public

liberty that occurred in the present reign. The power of the democracy

in that age resided chiefly in the corporations. These returned,

exclusively or principally, a majority of the representatives of the

commons. So long as they should be actuated by that ardent spirit of

protestantism and liberty which prevailed in the middling classes,

there was little prospect of obtaining a parliament that would

co-operate with the Stuart scheme of government. The administration of

justice was very much in the hands of their magistrates; especially in

Middlesex, where all juries are returned by the city sheriffs. It was

suggested therefore by some crafty lawyers that a judgment of

forfeiture obtained against the corporation of London would not only

demolish that citadel of insolent rebels, but intimidate the rest of

England by so striking an example. True it was, that no precedent

could be found for the forfeiture of corporate privileges. But general

reasoning was to serve instead of precedents; and there was a

considerable analogy in the surrenders of the abbeys under Henry

VIII., if much authority could be allowed to that transaction. An

information, as it is called, _quo warranto_, was accordingly brought

into the court of king's bench against the corporation. Two acts of

the common council were alleged as sufficient misdemeanours to warrant

a judgment of forfeiture; one, the imposition of certain tolls on

goods brought into the city markets, by an ordinance or by-law of

their own; the other, their petition to the king in December 1679 for

the sitting of parliament, and its publication throughout the

country.[794] It would be foreign to the purpose of this work to

enquire whether a corporation be in any case subject to forfeiture,

the affirmative of which seems to have been held by courts of justice

since the revolution; or whether the exaction of tolls in their

markets, in consideration of erecting stalls and standings, were

within the competence of the city of London; or, if not so, whether it

were such an offence as could legally incur the penalty of a total

forfeiture and disfranchisement; since it was manifest that the Crown

made use only of this additional pretext, in order to punish the

corporation for its address to the king. The language indeed of their

petition had been uncourtly, and what the adherents of prerogative

would call insolent; but it was at the worst rather a misdemeanour for

which the persons concerned might be responsible than a breach of the

trust reposed in the corporation. We are not however so much concerned

to argue the matter of law in this question, as to remark the spirit

in which the attack on this stronghold of popular liberty was

conceived. The court of king's bench pronounced judgment of forfeiture

against the corporation; but this judgment, at the request of the

attorney-general, was only recorded: the city continued in appearance

to possess its corporate franchises, but upon submission to certain

regulations; namely, that no mayor, sheriff, recorder, or other chief

officer, should be admitted until approved by the king; that in the

event of his twice disapproving their choice of a mayor, he should

himself nominate a fit person, and the same in case of sheriffs,

without waiting for a second election; that the court of aldermen,

with the king's permission, should remove any one of their body; that

they should have a negative on the elections of common councilmen, and

in case of disapproving a second choice, to have themselves the

nomination. The corporation submitted thus to purchase the continued

enjoyment of its estates, at the expense of its municipal

independence; yet, even in the prostrate condition of the whig party,

the question to admit these regulations was carried by no great

majority in the common councils.[795] The city was of course

absolutely subservient to the court from this time to the revolution.

After the fall of the capital, it was not to be expected that towns

less capable of defence should stand out. Informations _quo warranto_

were brought against several corporations; and a far greater number

hastened to anticipate the assault by voluntary surrenders. It seemed

to be recognised as law by the judgment against London, that any

irregularity or misuse of power in a corporation might incur a

sentence of forfeiture; and few could boast that they were

invulnerable at every point. The judges of assize in their circuits

prostituted their influence and authority to forward this and every

other encroachment of the Crown. Jefferies, on the northern circuit in

1684, to use the language of Charles II.'s most unblushing advocate,

"made all the charters, like the walls of Jericho, fall down before

him, and returned laden with surrenders, the spoils of towns."[796]

They received instead, new charters, framing the constitution of these

municipalities on a more oligarchical model, and reserving to the

Crown the first appointment of those who were to form the governing

part of the corporation. These changes were gradually brought about in

the last three years of Charles's reign, and in the beginning of the

next.

_Projects of Lord Russell and Sidney._--There can be nothing so

destructive to the English constitution, not even the introduction of

a military force, as the exclusion of the electoral body from their

franchises. The people of this country are, by our laws and

constitution, bound only to obey a parliament duly chosen; and this

violation of charters, in the reigns of Charles and James, appears to

be the great and leading justification of that event which drove the

latter from the throne. It can therefore be no matter of censure, in a

moral sense, that some men of pure and patriotic virtue, mingled, it

must be owned, with others of a far inferior temper, began to hold

consultations as to the best means of resisting a government, which,

whether to judge from these proceedings, or from the language of its

partisans, was aiming without disguise at an arbitrary power. But as

resistance to established authority can never be warrantable until it

is expedient, we could by no means approve any schemes of insurrection

that might be projected in 1682, unless we could perceive that there

was a fair chance of their success. And this we are not led, by what

we read of the spirit of those times, to believe. The tide ran

violently in another direction; the courage of the whigs was broken;

their adversaries were strong in numbers and in zeal. But from hence

it is reasonable to infer that men, like Lord Essex and Lord Russell,

with so much to lose by failure, with such good sense, and such

abhorrence of civil calamity, would not ultimately have resolved on

the desperate issue of arms, though they might deem it prudent to form

estimates of their strength, and to knit together a confederacy which

absolute necessity might call into action. It is beyond doubt that the

supposed conspirators had debated among themselves the subject of an

insurrection, and poised the chances of civil war. Thus much the most

jealous lawyer, I presume, will allow might be done, without risking

the penalties of treason. They had however gone farther; and by

concerting measures in different places as well as in Scotland, for a

rising, though contingently, and without any fixed determination to

carry it into effect, most probably (if the whole business had been

disclosed in testimony) laid themselves open to the law, according to

the construction it has frequently received. There is a considerable

difficulty, after all that has been written, in stating the extent of

their designs; but I think we may assume, that a wide-spreading and

formidable insurrection was for several months in agitation.[797] But

the difficulties and hazards of the enterprise had already caused Lord

Russell and Lord Essex to recede from the desperate counsels of

Shaftesbury; and but for the unhappy detection of the conspiracy and

the perfidy of Lord Howard, these two noble persons, whose lives were

untimely lost to their country, might have survived to join the banner

and support the throne of William. It is needless to observe that the

minor plot, if we may use that epithet in reference to the relative

dignity of the conspirators, for assassinating the king and the Duke

of York, had no immediate connection with the schemes of Russell,

Essex, and Sidney.[798]

But it is by no means a consequence from the admission we have made,

that the evidence adduced on Lord Russell's trial was sufficient to

justify his conviction.[799] It appears to me that Lord Howard, and

perhaps Rumsey, were unwilling witnesses; and that the former, as is

frequently the case with those who betray their friends in order to

save their own lives, divulged no more than was extracted by his own

danger. The testimony of neither witness, especially Howard, was given

with any degree of that precision which is exacted in modern times;

and, as we now read the trial, it is not probable that a jury in later

ages would have found a verdict of guilty, or would have been advised

to it by the court. But, on the other hand, if Lord Howard were really

able to prove more than he did, which I much suspect, a better

conducted examination would probably have elicited facts unfavourable

to the prisoner, which at present do not appear. It may be doubtful

whether any overt act of treason is distinctly proved against Lord

Russell, except his concurrence in the project of a rising at Taunton,

to which Rumsey deposes. But this depending on the oath of a single

witness, could not be sufficient for a conviction.

Pemberton, chief justice of the common pleas, tried this illustrious

prisoner with more humanity than was usually displayed on the bench;

but, aware of his precarious tenure in office, he did not venture to

check the counsel for the Crown, Sawyer and Jefferies, permitting them

to give a great body of hearsay evidence, with only the feeble and

useless remark that it did not affect the prisoner.[800] Yet he

checked Lord Anglesea, when he offered similar evidence for the

defence. In his direction to the jury, it deserves to be remarked that

he by no means advanced the general proposition, which better men have

held, that a conspiracy to levy war is in itself an overt act of

compassing the king's death; limiting it to cases where the king's

person might be put in danger, in the immediate instance, by the

alleged scheme of seizing his guards.[801] His language indeed, as

recorded in the printed trial, was such as might have produced a

verdict of acquittal from a jury tolerably disposed towards the

prisoner; but the sheriffs, North and Rich, who had been illegally

thrust into office, being men wholly devoted to the prerogative, had

taken care to return a panel in whom they could confide.[802]

The trial of Algernon Sidney, at which Jefferies, now raised to the

post of chief justice of the king's bench, presided, is as familiar to

all my readers as that of Lord Russell.[803] Their names have been

always united in grateful veneration and sympathy. It is notorious

that Sidney's conviction was obtained by a most illegal distortion of

the evidence. Besides Lord Howard, no living witness could be produced

to the conspiracy for an insurrection; and though Jefferies permitted

two others to prepossess the jury by a second-hand story, he was

compelled to admit that their testimony could not directly affect the

prisoner.[804] The attorney-general therefore had recourse to a paper

found in his house, which was given in evidence, either as an overt

act of treason by its own nature, or as connected with the alleged

conspiracy; for though it was only in the latter sense that it could

be admissible at all, yet Jefferies took care to insinuate, in his

charge to the jury, that the doctrines it contained were treasonable

in themselves, and without reference to other evidence. In regard to

truth, and to that justice which cannot be denied to the worst men in

their worst actions, I must observe that the common accusation against

the court in this trial, of having admitted insufficient proof by the

mere comparison of handwriting, though alleged, not only in most of

our historians, but in the act of parliament reversing Sidney's

attainder, does not appear to be well founded; the testimony to that

fact, unless the printed trial is falsified in an extraordinary

degree, being such as would be received at present.[805] We may allow

also that the passages from this paper, as laid in the indictment,

containing very strong assertions of the right of the people to depose

an unworthy king, might by possibility, if connected by other evidence

with the conspiracy itself, have been admissible as presumptions for

the jury to consider whether they had been written in furtherance of

that design. But when they came to be read on the trial with their

context, though only with such parts of that as the attorney-general

chose to produce out of a voluminous manuscript, it was clear that

they belonged to a theoretical work on government, long since perhaps

written, and incapable of any bearing upon the other evidence.[806]

The manifest iniquity of this sentence upon Algernon Sidney, as well

as the high courage he displayed throughout these last scenes of his

life, have inspired a sort of enthusiasm for his name, which neither

what we know of his story, nor the opinion of his contemporaries seem

altogether to warrant. The crown of martyrdom should be suffered

perhaps to exalt every virtue, and efface every defect in patriots, as

it has often done in saints. In the faithful mirror of history, Sidney

may lose something of this lustre. He possessed no doubt a powerful,

active, and undaunted mind, stored with extensive reading on the

topics in which he delighted. But having proposed one only object for

his political conduct, the establishment of a republic in England, his

pride and inflexibility, though they gave a dignity to his character,

rendered his views narrow and his temper unaccommodating. It was

evident to every reasonable man that a republican government, being

adverse to the prepossessions of a great majority of the people, could

only be brought about and maintained by the force of usurpation. Yet

for this idol of his speculative hours, he was content to sacrifice

the liberties of Europe, to plunge the country in civil war, and even

to stand indebted to France for protection. He may justly be suspected

of having been the chief promoter of the dangerous cabals with

Barillon; nor could any tool of Charles's court be more sedulous in

representing the aggressions of Louis XIV. in the Netherlands as

indifferent to our honour and safety.

Sir Thomas Armstrong, who had fled to Holland on the detection of the

plot, was given up by the States. A sentence of outlawry, which had

passed against him in his absence, is equivalent, in cases of treason,

to a conviction of the crime. But the law allows the space of one

year, during which the party may surrender himself to take his trial.

Armstrong, when brought before the court, insisted on this right, and

demanded a trial. Nothing could be more evident, in point of law, than

that he was entitled to it. But Jefferies, with inhuman rudeness,

treated his claim as wholly unfounded, and would not even suffer

counsel to be heard in his behalf. He was executed accordingly without

trial.[807] But it would be too prolix to recapitulate all the

instances of brutal injustice, or of cowardly subserviency, which

degraded the English lawyers of the Stuart period, and never so

infamously as in these last years of Charles II. From this

prostitution of the tribunals, from the intermission of parliaments,

and the steps taken to render them in future mere puppets of the

Crown, it was plain that all constitutional securities were at least

in abeyance; and those who felt themselves most obnoxious, or whose

spirit was too high to live in an enslaved country, retired to Holland

as an asylum in which they might wait the occasion of better

prospects, or, at the worst, breathe an air of liberty.

Meanwhile the prejudice against the whig party, which had reached so

great a height in 1681, was still farther enhanced by the detection of

the late conspiracy. The atrocious scheme of assassination, alleged

against Walcot and some others who had suffered, was blended by the

arts of the court and clergy, and by the blundering credulity of the

gentry, with those less heinous projects ascribed to Lord Russell and

his associates.[808] These projects, if true in their full extent,

were indeed such as men honestly attached to the government of their

country could not fail to disapprove. For this purpose, a declaration

full of malicious insinuations was ordered to be read in all

churches.[809] It was generally commented upon, we may make no

question, in one of those loyal discourses, which, trampling on all

truth, charity, and moderation, had no other scope than to inflame the

hearers against nonconforming protestants, and to throw obloquy on the

constitutional privileges of the subject.

_High tory principles of the clergy._--It is not my intention to

censure, in any strong sense of the word, the Anglican clergy at this

time for their assertion of absolute non-resistance, so far as it was

done without calumny and insolence towards those of another way of

thinking, and without self-interested adulation of the ruling power.

Their error was very dangerous, and had nearly proved destructive of

the whole constitution; but it was one which had come down with high

recommendation, and of which they could only perhaps be undeceived, as

men are best undeceived of most errors, by experience that it might

hurt themselves. It was the tenet of their homilies, their canons,

their most distinguished divines and casuists; it had the apparent

sanction of the legislature in a statute of the present reign. Many

excellent men, as was shown after the revolution, who had never made

use of this doctrine as an engine of faction or private interest,

could not disentangle their minds from the arguments or the authority

on which it rested. But by too great a number it was eagerly brought

forward to serve the purposes of arbitrary power, or at best to fix

the wavering protestantism of the court by professions of

unimpeachable loyalty. To this motive, in fact, we may trace a good

deal of the vehemence with which the non-resisting principle had been

originally advanced by the church of England under the Tudors, and was

continually urged under the Stuarts. If we look at the tracts and

sermons published by both parties after the restoration, it will

appear manifest that the Romish and Anglican churches bade, as it

were, against each other for the favour of the two royal brothers. The

one appealed to its acknowledged principles, while it denounced the

pretensions of the holy see to release subjects from their allegiance,

and the bold theories of popular government which Mariana and some

other Jesuits had promulgated. The others retaliated on the first

movers of the reformation, and expatiated on the usurpation of Lady

Jane Grey, not to say Elizabeth, and the republicanism of Knox or

Calvin.

_Passive obedience._--From the æra of the exclusion bill especially,

to the death of Charles II., a number of books were published in

favour of an indefeasible hereditary right of the Crown, and of

absolute non-resistance. These were however of two very different

classes. The authors of the first, who were perhaps the more numerous,

did not deny the legal limitations of monarchy. They admitted that no

one was bound to concur in the execution of unlawful commands. Hence

the obedience they deemed indispensable was denominated passive; an

epithet which, in modern usage, is little more than redundant, but at

that time made a sensible distinction. If all men should confine

themselves to this line of duty, and merely refuse to become the

instruments of such unlawful commands, it was evident that no tyranny

could be carried into effect. If some should be wicked enough to

co-operate against the liberties of their country, it would still be

the bounden obligation of Christians to submit. Of this, which may be

reckoned the moderate party, the most eminent were Hickes in a

treatise called "Jovian," and Sherlock in his case of resistance to

the supreme powers.[810] To this also must have belonged Archbishop

Sancroft, and the great body of non-juring clergy who had refused to

read the declaration of indulgence under James II., and whose conduct

in that respect would be utterly absurd, except on the supposition

that there existed some lawful boundaries of the royal authority.

_Some contend for absolute-power._--But besides these men, who kept

some measures with the constitution, even while, by their slavish

tenets, they laid it open to the assaults of more intrepid enemies,

another and a pretty considerable class of writers did not hesitate to

avow their abhorrence of all limitations upon arbitrary power. Brady

went back to the primary sources of our history, and endeavoured to

show that Magna Charta, as well as every other constitutional law,

were but rebellious encroachments on the ancient uncontrollable

imprescriptible prerogatives of the monarchy. His writings, replete

with learning and acuteness, and in some respects with just remarks,

though often unfair and always partial, naturally produced an effect

on those who had been accustomed to value the constitution rather for

its presumed antiquity, than its real excellence. But the author most

in vogue with the partisans of despotism was Sir Robert Filmer. He had

lived before the civil war, but his posthumous writings came to light

about this period. They contain an elaborate vindication of what was

called the patriarchal scheme of government, which, rejecting with

scorn that original contract whence human society had been supposed to

spring, derives all legitimate authority from that of primogeniture,

the next heir being king by divine right, and as incapable of being

restrained in his sovereignty, as of being excluded from it. "As

kingly power," he says, "is by the law of God, so hath it no inferior

power to limit it. The father of a family governs by no other law than

his own will, not by the laws and wills of his sons and

servants."[811] "The direction of the law is but like the advice and

direction which the king's council gives the king, which no man says

is a law to the king."[812] "General laws," he observes, "made in

parliament, may, upon known respects to the king, by his authority be

mitigated or suspended upon causes only known to him; and by the

coronation oath, he is only bound to observe good laws, of which he is

the judge."[813] "A man is bound to obey the king's command against

law, nay, in some cases, against divine laws."[814] In another

treatise, entitled "The Anarchy of a Mixed or Limited Monarchy," he

inveighs, with no kind of reserve or exception, against the regular

constitution; setting off with an assumption that the parliament of

England was originally but an imitation of the States General of

France, which had no further power than to present requests to the

king.[815]

These treatises of Filmer obtained a very favourable reception. We

find the patriarchal origin of government frequently mentioned in the

publications of this time as an undoubted truth. Considered with

respect to his celebrity rather than his talents, he was not, as some

might imagine, too ignoble an adversary for Locke to have combated.

Another person, far superior to Filmer in political eminence,

undertook at the same time an unequivocal defence of absolute

monarchy. This was Sir George Mackenzie, the famous lord advocate of

Scotland. In his "Jus Regium," published in 1684, and dedicated to the

university of Oxford, he maintains, that "monarchy in its nature is

absolute, and consequently these pretended limitations are against the

nature of monarchy."[816] "Whatever proves monarchy to be an excellent

government, does by the same reason prove absolute monarchy to be the

best government; for if monarchy be to be commended, because it

prevents divisions, then a limited monarchy, which allows the people a

share, is not to be commended, because it occasions them; if monarchy

be commended, because there is more expedition, secrecy, and other

excellent qualities to be found in it, then absolute monarchy is to be

commended above a limited one, because a limited monarch must impart

his secrets to the people, and must delay the noblest designs, until

malicious and factious spirits be either gained or overcome; and the

same analogy of reason will hold in reflecting upon all other

advantages of monarchy, the examination whereof I dare trust to every

man's own bosom."[817] We can hardly, after this, avoid being

astonished at the effrontery even of a Scots crown lawyer, when we

read in the preface to this very treatise of Mackenzie, "Under whom

can we expect to be free from arbitrary government, when we were and

are afraid of it under King Charles I. and King Charles II.?"

_Decree of the university of Oxford._--It was at this time that the

university of Oxford published their celebrated decree against

pernicious books and damnable doctrines, enumerating as such above

twenty propositions which they anathematised as false, seditious, and

impious. The first of these is, that all civil authority is derived

originally from the people; the second, that there is a compact, tacit

or express, between the king and his subjects: and others follow of

the same description. They do not explicitly condemn a limited

monarchy, like Filmer, but evidently adopt his scheme of primogenitary

right, which is incompatible with it. Nor is there the slightest

intimation that the university extended their censure to such praises

of despotic power as have been quoted in the last pages.[818] This

decree was publicly burned by an order of the House of Lords in 1709:

nor does there seem to have been a single dissent in that body to a

step that cast such a stigma on the university. But the disgrace of

the offence was greater than that of the punishment.

We can frame no adequate conception of the jeopardy in which our

liberties stood under the Stuarts, especially in this particular

period, without attending to this spirit of servility which had been

so sedulously excited. It seemed as if England was about to play the

scene which Denmark had not long since exhibited, by a spontaneous

surrender of its constitution. And although this loyalty were much

more on the tongue than in the heart, as the next reign very amply

disclosed, it served at least to deceive the court into a belief that

its future steps would be almost without difficulty. It is uncertain

whether Charles would have summoned another parliament. He either had

the intention, or professed it in order to obtain money from France,

of convoking one at Cambridge in the autumn of 1681.[819] But after

the scheme of new-modelling corporations began to be tried, it was his

policy to wait the effects of this regeneration. It was better still,

in his judgment, to dispense with the Commons altogether. The period

fixed by law had elapsed nearly twelve months before his death; and we

have no evidence that a new parliament was in contemplation. But

Louis, on the other hand, having discontinued his annual subsidy to

the king in 1684, after gaining Strasburg and Luxemburg by his

connivance, or rather co-operation,[820] it would not have been easy

to avoid a recurrence to the only lawful source of revenue. The King

of France, it should be observed, behaved towards Charles as men

usually treat the low tools by whose corruption they have obtained any

end. During the whole course of their long negotiations, Louis, though

never the dupe of our wretched monarch, was compelled to endure his

shuffling evasions, and pay dearly for his base compliances. But when

he saw himself no longer in need of them, it seems to have been in

revenge that he permitted the publication of the secret treaty of

1670, and withdrew his pecuniary aid. Charles deeply resented both

these marks of desertion in his ally. In addition to them he

discovered the intrigues of the French ambassadors with his malcontent

Commons. He perceived also that by bringing home the Duke of York from

Scotland, and restoring him in defiance of the test act to the privy

council, he had made the presumptive heir of the throne, possessed as

he was of superior steadiness and attention, too near a rival to

himself. These reflections appear to have depressed his mind in the

latter months of his life, and to have produced that remarkable

private reconciliation with the Duke of Monmouth, through the

influence of Lord Halifax; which, had he lived, would very probably

have displayed one more revolution in the uncertain policy of this

reign.[821] But a death, so sudden and inopportune as to excite

suspicions of poison in some most nearly connected with him, gave a

more decisive character to the system of government.[822]

THE TEMPLE PRESS, PRINTERS, LETCHWORTH

FOOTNOTES:

[696] Temple's _Memoirs_.

[697] Burnet says that Danby bribed the less important members,

instead of the leaders; which did not answer so well. But he seems to

have been liberal to all. The parliament has gained the name of the

pensioned. In that of 1679, Sir Stephen Fox was called upon to produce

an account of the monies paid to many of their predecessors. Those who

belonged to the new parliament, endeavoured to defend themselves; and

gave reasons for their pensions; but I observe no one says he did not

always vote with the court. _Parl. Hist._ 1137. North admits that

great clamour was excited by this discovery; and well it might. See

also Dalrymple, ii. 92.

[698] Burnet charges these two leaders of opposition with being bribed

by the court to draw the house into granting an enormous supply, as

the consideration of passing the test act; and see Pepys, Oct. 6,

1666. Sir Robert Howard and Sir Richard Temple were said to have gone

over to the court in 1670 through similar inducements. Ralph. Roger

North (_Examen_, p. 456) gives an account of the manner in which men

were brought off from the opposition, though it was sometimes

advisable to let them nominally continue in it; and mentions Lee,

Garraway, and Meres, all very active patriots, if we trust to the

parliamentary debates. But, after all, neither Burnet nor Roger North

are wholly to be relied on as to particular instances; though the

general fact of an extensive corruption be indisputable.

[699] This cunning, self-interested man, who had been introduced to

the house by Lord Russell and Lord Cavendish, and was connected with

the country party, tells us that Danby sent for him in Feb. 1677, and

assured him that the jealousies of that party were wholly without

foundation; that, to his certain knowledge, the king meant no other

than to preserve the religion and government by law established; that,

if the government was in any danger, it was from those who pretended

such a mighty zeal for it. On finding him well disposed, Danby took

his proselyte to the king, who assured him of his regard for the

constitution, and was right loyally believed. Reresby's _Memoirs_, p.

36.

[700] "There were two things," says Bishop Parker, "which, like

Circe's cup, bewitched men and turned them into brutes; viz. popery

and French interest. If men otherwise sober heard them once, it was

sufficient to make them run mad. But, when those things were laid

aside, their behaviour to his majesty was with a becoming modesty." P.

244. Whenever the court seemed to fall in with the national interests

on the two points of France and popery, many of the country party

voted with them, though more numerous than their own. Temple, p. 458.

See too Reresby, p. 25 _et alibi_.

[701] The king, according to James himself, readily consented to the

marriage of the princess, when it was first suggested in 1675; the

difficulty was with her father. He gave at last a reluctant consent;

and the offer was made by Lords Arlington and Ossory to the Prince of

Orange, who received it coolly. _Life of James_, 501. When he came

over to England in Oct. 1677, with the intention of effecting the

match, the king and duke wished to defer it till the conclusion of the

treaty then in negotiation at Nimeguen; but "the obstinacy of the

prince, with the assistance of the treasurer, who from that time

entered into the measures and interests of the prince, prevailed upon

the flexibility of the king to let the marriage be first agreed and

concluded."--P. 508.

[702] Kennet, p. 332; North's _Examen_, p. 61; Burnet. This test was

covertly meant against the Romish party as well as more openly against

the dissenters. _Life of James_, p. 499. Danby set himself up as the

patron of the church party and old cavaliers against the two opposing

religions; trusting that they were the stronger in the House of

Commons. But the times were so changed that the same men had no longer

the same principles, and the house would listen to no measures against

nonconformists. He propitiated, however, the prelates, by renewing the

persecution under the existing laws, which had been relaxed by the

cabal ministry. Baxter, 156, 172; Kennet, 331; Neal, 698; _Somers

Tracts_, vii. 336.

Meanwhile, schemes of comprehension were sometimes on foot; and the

prelates affected to be desirous of bringing about an union; but

Morley and Sheldon frustrated them all. Baxter, 156; Kennet, 326;

Parker, 25. The bishops, however, were not uniformly intolerant.

Croft, Bishop of Hereford, published, about 1675, a tract that made

some noise, entitled "The Naked Truth," for the purpose of moderating

differences. It is not written with extraordinary ability; but is very

candid and well designed, though conceding so much as to scandalise

his brethren. _Somers Tracts_, vii. 268; _Biogr. Brit._ art. Croft;

where the book is extravagantly over praised. Croft was one of the few

bishops who, being then very old, advised his clergy to read James

II.'s declaration in 1687; thinking, I suppose, though in those

circumstances erroneously, that toleration was so good a thing, it was

better to have it irregularly than not at all.

[703] Charles received 500,000 crowns for the long prorogation of

parliament, from Nov. 1675 to Feb. 1677. In the beginning of the year

1676, the two kings bound themselves by a formal treaty (to which

Danby and Lauderdale, but not Coventry or Williamson, were privy), not

to enter on any treaties but by mutual consent; and Charles promised,

in consideration of a pension, to prorogue or dissolve parliament, if

they should attempt to force such treaties upon him. Dalrymple, p. 99.

Danby tried to break this off, but did not hesitate to press the

French cabinet for the money; and £200,000 was paid. The Prince of

Orange came afterwards through Rouvigny to a knowledge of this secret

treaty. P. 117.

[704] This army consisted of between twenty and thirty thousand men,

as fine troops as could be seen (_Life of James_, p. 512): an alarming

sight to those who denied the lawfulness of any standing army. It is

impossible to doubt, from Barillon's correspondence in Dalrymple, that

the king and duke looked to this force as the means of consolidating

the royal authority. This was suspected at home, and very justly:

"Many well-meaning men," says Reresby, "began to fear the army now

raised was rather intended to awe our own kingdom than to war against

France, as had at first been suggested."--P. 62. And in a former

passage (p. 57) he positively attributes the opposition to the French

war in 1678, to "a jealousy that the king indeed intended to raise an

army, but never designed to go on with the war; and to say the truth,

some of the king's own party were not very sure of the contrary."

[705] Dalrymple, p. 129. The immediate cause of those intrigues was

the indignation of Louis at the Princess Mary's marriage. That event

which, as we know from James himself, was very suddenly brought about,

took the King of France by surprise. Charles apologised for it to

Barillon, by saying, "I am the only one of my party, except my

brother."--P. 125. This, in fact, was the secret of his apparent

relinquishment of French interests at different times in the latter

years of his reign; he found it hard to kick constantly against the

pricks, and could employ no minister who went cordially along with his

predilections. He seems too at times, as well as the Duke of York, to

have been seriously provoked at the unceasing encroachments of France,

which exposed him to so much vexation at home.

The connection with Lords Russell and Hollis began in March 1678,

though some of the opposition had been making advances to Barillon in

the preceding November. Pp. 129, 131. See also _Copies and Extracts of

some Letters written to and from the Earl of Danby_, published in

1716; whence it appears that Montagu suspected the intrigues of

Barillon, and the mission of Rouvigny, Lady Russell's first cousin,

for the same purpose, as early as Jan. 1678; and informed Danby of it.

Pp. 50, 53, 59.

[706] Courtin, the French ambassador who preceded Barillon, had been

engaged through great part of the year 1677 in a treaty with Charles

for the prorogation or dissolution of parliament. After a long

chaffering, the sum was fixed at 2,000,000 livres; in consideration of

which the King of England pledged himself to prorogue parliament from

December to April 1678. It was in consequence of the subsidy being

stopped by Louis, in resentment of the Princess Mary's marriage, that

parliament, which had been already prorogued till April, was suddenly

assembled in February. Dalrymple, p. 111. It appears that Courtin had

employed French money to bribe members of the Commons in 1677 with the

knowledge of Charles; assigning as a reason, that Spain and the

emperor were distributing money on the other side. In the course of

this negotiation, he assured Charles that the King of France was

always ready to employ all his forces for the confirmation and

augmentation of the royal authority in England, so that he should

always be master of his subjects, and not depend upon them.

[707] See what Temple says of this (p. 460): the king raised 20,000

men in the spring of 1678, and seemed ready to go into the war; but

all was spoiled by a vote, on Clarges's motion, that no money should

be granted till satisfaction should be made as to religion. This

irritated the king so much that he determined to take the money which

France offered him; and he afterwards almost compelled the Dutch to

sign the treaty; so much against the Prince of Orange's inclinations,

that he has often been charged, though unjustly, with having fought

the battle of St. Denis after he knew that the peace was concluded.

Danby also, in his vindication (published in 1679, and again in 1710;

see _State Trials_, ii. 634), lays the blame of discouraging the king

from embarking in the war on this vote of the Commons. And the author

of the _Life of James II._ says very truly, that the Commons "were in

reality more jealous of the king's power than of the power of France;

for, notwithstanding all their former warm addresses for hindering the

growth of the power of France, when the king had no army, now that he

had one, they passed a vote to have it immediately disbanded; and the

factious party, which was then prevalent among them, made it their

only business to be rid of the duke, to pull down the ministers, and

to weaken the Crown."--P. 512.

In defence of the Commons it is to be urged that, if they had any

strong suspicion of the king's private intrigues with France for some

years past, as in all likelihood they had, common prudence would teach

them to distrust his pretended desire for war with her; and it is, in

fact, most probable, that his real object was to be master of a

considerable army.

[708] The memorial of Blancard to the Prince of Orange, quoted by

Dalrymple (p. 201) contains these words: "Le roi auroit été bien faché

qu'il eut été absolu dans ses états; l'un de ses plus constants

maximes depuis son rétablissement ayant été, de le diviser d'avec son

parlement, et de se servir tantôt de l'un, tantôt de l'autre, toujours

par argent pour parvenir à ses fins."

[709] Ralph, p. 116; _Oeuvres de Louis XIV._ ii. 204, and v. 67,

where we have a curious and characteristic letter of the king to

d'Estrades in Jan. 1662, when he had been provoked by some high

language Clarendon had held about the right of the flag.

[710] The letters of Barillon in Dalrymple (pp. 134, 136, 140) are

sufficient proofs of this. He imputes to Danby in one place (p. 142)

the design of making the king absolute, and says: "M. le duc d'York se

croit perdu pour sa religion, si l'occasion présente ne lui sert à

soumettre l'Angleterre; c'est une entreprise fort hardie, et dont le

succès est fort doutex." Of Charles himself he says: "Le roi

d'Angleterre balance encore à se porter à l'extremité; son humeur

répugne fort au dessein de changer le gouvernement. Il est néanmoins

entrainé par M. le duc d'York et par le grand trésorier; mais dans le

fond il aimeroit mieux que la paix le mît en état de demeurer en

repos, et rétablir ses affaires, c'est à dire, un bon revenu; et je

crois qu'il ne se soucie pas beaucoup d'être plus absolu qu'il est. Le

duc et le trésorier connoissent bien à qui ils ont affaire, et

craignent d'être abandonnés par le roi d'Angleterre aux premiers

obstacles considérables qu'ils trouveront au dessein de relever

l'autorité royale en Angleterre." On this passage it may be observed,

that there is reason to believe there was no co-operation, but rather

a great distrust at this time between the Duke of York and Lord Danby.

But Barillon had no doubt taken care to infuse into the minds of the

opposition those suspicions of that minister's designs.

[711] Barillon appears to have favoured the opposition rather than the

Duke of York, who urged the keeping up of the army. This was also the

great object of the king, who very reluctantly disbanded it in Jan.

1679. Dalrymple, 207, etc.

[712] This delicate subject is treated with great candour as well as

judgment by Lord John Russell, in his _Life of William Lord Russell_.

[713] _Parl. Hist._ 1035; Dalrymple, 200.

[714] Louis XIV. tells us, that Sidney had made proposals to France in

1666 for an insurrection, and asked 100,000 crowns to effect it; which

was thought too much for an experiment. He tried to persuade the

ministers, that it was against the interest of France that England

should continue a monarchy. _Oeuvres de Louis XIV._ ii. 204.

[715] Dalrymple, 162.

[716] His exclamation at Barillon's pressing the reduction of the army

to 8000 men is well known: "God's fish! are all the King of France's

promises to make me master of my subjects come to this! or does he

think that a matter to be done with 8000 men!" Temple says, "He seemed

at this time (May 1678) more resolved to enter into the war than I had

ever before seen or thought him."

[717] Dalrymple, 178 _et post_.

[718] _Memoirs relating to the Impeachment of the Earl of Danby_,

1710, pp. 151, 227; _State Trials_, vol. xi.

[719] The violence of the next House of Commons, who refused to

acquiesce in Danby's banishment, to which the Lords had changed their

bill of attainder, may seem to render this very doubtful. But it is to

be remembered that they were exasperated by the pardon he had

clandestinely obtained, and pleaded in bar of their impeachment.

[720] The impeachment was carried by 179 to 116, Dec. 19. A motion

(Dec. 21) to leave out the word traitorously was lost by 179 to 141.

[721] Lords' Journals, Dec. 26, 1678. Eighteen peers entered their

protests; Halifax, Essex, Shaftesbury, etc.

[722] _State Trials_, vi. 351 _et post_; Hatsell's _Precedents_, iv.

176.

[723] Lords' Journals, April 16.

[724] "The lord privy seal, Anglesea, in a conference between the two

houses," said, "that, in the transaction of this affair, were two

great points gained by this House of Commons: the first was, that

impeachments made by the Commons in one parliament continued from

session to session, and parliament to parliament, notwithstanding

prorogations or dissolutions: the other point was, that in cases of

impeachments, upon special matter shown, if the modesty of the party

directs him not to withdraw, the Lords admit that of right they ought

to order him to withdraw, and that afterwards he ought to be

committed. But he understood that the Lords did not intend to extend

the points of withdrawing and committing to general impeachments

without special matter alleged; else they did not know how many might

be picked out of their house on a sudden."

Shaftesbury said, indecently enough, that they were as willing to be

rid of the Earl of Danby as the Commons; and cavilled at the

distinction between general and special impeachments. Commons'

Journals, April 12, 1679. On the impeachment of Scroggs for treason,

in the next parliament, it was moved to commit him; but the previous

question was carried, and he was admitted to bail; doubtless because

no sufficient matter was alleged. Twenty peers protested. Lords'

Journals, Jan. 7, 1681.

[725] Lords' Journals, April 25; _Parl. Hist._ 1121, etc.

[726] Lords' Journals, May 9, 1679.

[727] Lords' Journals, May 10 and 11. After the former vote 50 peers,

out of 107 who appear to have been present, entered their dissent; and

another, the Earl of Leicester, is known to have voted with the

minority. The unusual strength of opposition, no doubt, produced the

change next day.

[728] May 13. Twenty-one peers were entered as dissentient. The

Commons inquired whether it were intended by this that the bishops

should vote on the pardon of Danby, which the upper house declined to

answer, but said they could not vote on the trial of the five popish

lords, May 15, 17, 27.

[729] See the report of a committee in Journals, May 26; or Hatsell's

_Precedents_, iv. 374.

[730] 13 W. III. c. 2.

[731] _Parl. Hist._ vii. 283. Mr. Lechmere, a very ardent whig, then

solicitor-general, and one of the managers on the impeachment, had

most confidently denied this prerogative. _Id._ 233.

[732] Instead of the words in the order, "from the proceedings of any

other court," the following are inserted, "or any other business

wherein their lordships act as in a court of judicature, and not in

their legislative capacity." The importance of this alteration as to

the question of impeachment is obvious.

[733] Lords' Journals.

[734] Lords' Journals. Seventy-eight peers were present.

[735] _Id._ 4th Dec. 1680.

[736] Lords' Journ. March 24, 1681. The very next day the Commons sent

a message to demand judgment on the impeachment against him. Com.

Journ. March 25.

[737] Shower's _Reports_, ii. 335. "He was bailed to appear at the

Lords' bar the first day of the then next parliament." The catholic

lords were bailed the next day. This proves that the impeachment was

not held to be at an end.

[738] Lords' Journals, May 22, 1685.

[739] Upon considering the proceedings in the House of Lords on this

subject, Oct. 6 and 30, 1690, and especially the protest signed by

eight peers on the latter day, there can be little doubt that their

release had been chiefly grounded on the act of grace, and not on the

abandonment of the impeachment.

[740] Bishop Parker is not wrong in saying that the House of Commons

had so long accustomed themselves to strange fictions about popery,

that, upon the first discovery of Oates's plot, they readily believed

everything he said; for they had long expected whatever he declared.

_Hist. sui temp._ p. 248 (of the translation).

[741] _Parl. Hist._ 1024, 1035; _State Trials_, vii. 1; Kennet, 327,

337, 351; North's _Examen_, 129, 177; Ralph, 386; Burnet, i. 555.

Scroggs tried Coleman with much rudeness and partiality; but his

summing up in reference to the famous passage in the letters is not

deficient in acuteness. In fact, this not only convicted Coleman, but

raised a general conviction of the truth of a plot--and a plot there

was, though not Oates's.

[742] _Examen_, p. 196.

[743] R. v. Farwell and others; _State Trials_, viii. 1361. They were

indicted for publishing some letters to prove that Godfrey had killed

himself. They defended themselves by calling witnesses to prove the

truth of the fact, which, though in a case of libel, Pemberton

allowed. But their own witnesses proved that Godfrey's body had all

the appearance of being strangled.

The Roman catholics gave out, at the time of Godfrey's death, that he

had killed himself; and hurt their own cause by foolish lies. North's

_Examen_, p. 200.

[744] It was deposed by a respectable witness, that Godfrey

entertained apprehensions on account of what he had done as to the

plot, and had said, "On my conscience, I believe I shall be the first

martyr." _State Trials_, vii. 168. These little additional

circumstances, which are suppressed by later historians, who speak of

the plot as unfit to impose on any but the most bigoted fanatics,

contributed to make up a body of presumptive and positive evidence,

from which human relief is rarely withheld.

It is remarkable that the most acute and diligent historian we possess

for those times, Ralph, does not in the slightest degree pretend to

account for Godfrey's death; though, in his general reflections on the

plot (p. 555) he relies too much on the assertions of North and

l'Estrange.

[745] _State Trials_, vii. 259; North's _Examen_, 240.

[746] _State Trials_, vol. vii. _passim_. On the trial of Green,

Berry, and Hill, for Godfrey's murder, part of the story for the

prosecution was, that the body was brought to Hill's lodgings on the

Saturday, and remained there till Monday. The prisoner called

witnesses who lodged in the same house, to prove that it could not

have been there without their knowledge. Wild, one of the judges,

assuming, as usual, the truth of the story as beyond controversy, said

it was very suspicious that they should see or hear nothing of it; and

another, Dolben, told them it was well they were not indicted. _Id._

199. Jones, summing up the evidence on Sir Thomas Gascoigne's trial at

York (an aged catholic gentleman, most improbably accused of accession

to the plot), says to the jury: "Gentlemen, you have the king's

witness on his oath; he that testifies against him is barely on his

word, and he is a papist" (_Id._ 1039): thus deriving an argument from

an iniquitous rule, which, at that time, prevailed in our law, of

refusing to hear the prisoner's witnesses upon oath. Gascoigne,

however, was acquitted.

It would swell this note to an unwarrantable length, were I to extract

so much of the trials as might fully exhibit all the instances of

gross partiality in the conduct of the judges. I must, therefore,

refer my readers to the volume itself, a standing monument of the

necessity of the revolution; not only as it rendered the judges

independent of the Crown, but as it brought forward those principles

of equal and indifferent justice, which can never be expected to

flourish but under the shadow of liberty.

[747] _State Trials_, 119, 315, 344.

[748] Roger North, whose long account of the popish plot is, as usual

with him, a medley of truth and lies, acuteness and absurdity,

represents his brother, the chief justice, as perfectly immaculate in

the midst of this degradation of the bench. The _State Trials_,

however, show that he was as partial and unjust towards the prisoners

as any of the rest, till the government thought it necessary to

interfere. The moment when the judges veered round, was on the trial

of Sir George Wakeman, physician to the queen. Scroggs, who had been

infamously partial against the prisoners upon every former occasion,

now treated Oates and Bedloe as they deserved, though to the

aggravation of his own disgrace. _State Trials_, vii. 619-686.

[749] _State Trials_, 1552; _Parl. Hist._ 1229. Stafford, though not a

man of much ability, had rendered himself obnoxious as a prominent

opposer of all measures intended to check the growth of popery. His

name appears constantly in protests upon such occasions; as, for

instance, March 3, 1678, against the bill for raising money for a

French war. Reresby praises his defence very highly. P. 108. The Duke

of York, on the contrary, or his biographer, observes: "Those who

wished Lord Stafford well were of opinion that, had he managed the

advantages which were given him with dexterity, he would have made the

greatest part of his judges ashamed to condemn him; but it was his

misfortune to play his game worst, when he had the best cards."--P.

637.

[750] I take this from extracts out of those sermons, contained in a

Roman catholic pamphlet printed in 1687, and entitled "Good Advice to

the Pulpits." The protestant divines did their cause no good by

misrepresentation of their adversaries, and by their propensity to

rudeness and scurrility. The former fault indeed existed in a much

greater degree on the opposite side, but by no means the latter. See

also a treatise by Barlow, published in 1679, entitled, "Popish

Principles pernicious to Protestant Princes."

[751] _Parl. Hist._ 1040.

[752] See Marvell's "Seasonable Argument to persuade all the grand

Juries in England to petition for a new Parliament." He gives very bad

characters of the principal members on the court side; but we cannot

take for granted all that comes from so unscrupulous a libeller. Sir

Harbottle Grimstone had first thrown out, in the session of 1675, that

a standing parliament was as great a grievance as a standing army, and

that an application ought to be made to the king for a dissolution.

This was not seconded; and met with much disapprobation from both

sides of the house. _Parl. Hist._ vii. 64. But the country party, in

two years' time, had changed their views, and were become eager for a

dissolution. An address to that effect was moved in the House of

Lords, and lost by only two voices, the Duke of York voting for it.

_Id._ 800. This is explained by a passage in Coleman's _Letters_;

where that intriguer expresses his desire to see parliament dissolved,

in the hope that another would be more favourable to the toleration of

catholics. This must mean that the dissenters might gain an advantage

over the rigorous church of England men, and be induced to come into a

general indulgence.

[753] This test, 30 Car. 2, stat. 2, is the declaration subscribed by

members of both houses of parliament on taking their seats, that there

is no transubstantiation of the elements in the Lord's supper; and

that the invocation of saints, as practised in the church of Rome, is

idolatrous. The oath of supremacy was already taken by the Commons,

though not by the Lords; and it is a great mistake to imagine that

catholics were legally capable of sitting in the lower house before

the act of 1679. But it had been the aim of the long parliament in

1642 to exclude them from the House of Lords; and this was of course

revived with greater eagerness, as the danger from their influence

grew more apparent. A bill for this purpose passed the Commons in 1675,

but was thrown out by the peers. Journals, May 14, Nov. 8. It was

brought in again in the spring of 1678. _Parl. Hist._ 990. In the autumn

of the same year it was renewed, when the Lords agreed to the oath of

supremacy, but omitted the declaration against transubstantiation, so

far as their own house was affected by it. Lords' Journals, Nov. 20,

1678. They also excepted the Duke of York from the operation of the

bill; which exception was carried in the Commons by two voices. _Parl.

Hist._ 1040. The Duke of York and seven more lords protested.

The violence of those times on all sides will account for this

theological declaration; but it is more difficult to justify its

retention at present. Whatever influence a belief in the pope's

supremacy may exercise upon men's politics, it is hard to see how the

doctrine of transubstantiation can directly affect them; and surely he

who renounces the former, cannot be very dangerous on account of his

adherence to the latter. Nor is it less extraordinary to demand, from

many of those who usually compose a House of Commons, the assertion

that the practice of the church of Rome in the invocation of saints is

idolatrous; since, even on the hypothesis that a country gentleman has

a clear notion of what is meant by idolatry, he is, in many cases,

wholly out of the way of knowing what the church of Rome or any of its

members believe or practise. The invocation of saints, as held and

explained by that church in the council of Trent, is surely not

idolatrous, with whatever error it may be charged; but the practice at

least of uneducated Roman catholics seems fully to justify the

declaration; understanding it to refer to certain superstitions,

countenanced or not eradicated by their clergy. I have sometimes

thought that the legislator of a great nation sets off oddly by

solemnly professing theological positions about which he knows

nothing, and swearing to the possession of property which he does not

enjoy. [1827.]

[754] The second reading of the exclusion bill was carried, May 21,

1679, by 207 to 128. The debates are in _Parliamentary History_, 1125

_et post_. In the next parliament it was carried without a division.

Sir Leoline Jenkins alone seems to have taken the high ground, that

"parliament cannot disinherit the heir of the Crown; and that, if such

an act should pass, it would be invalid in itself."--_Id._ 1191.

[755] While the exclusion bill was passing the Commons, the king took

the pains to speak himself to almost every lord, to dissuade him from

assenting to it when it should come up; telling them, at the same

time, let what would happen, he would never suffer such a villainous

bill to pass. _Life of James_, 553.

[756] Ralph, p. 498. The atrocious libel, entitled, "An Appeal from

the Country to the City," published in 1679, and usually ascribed to

Ferguson (though said in _Biogr. Brit._ art. L'Estrange, to be written

by Charles Blount), was almost sufficient of itself to excuse the

return of public opinion towards the throne. _State Tracts_, temp.

Car. II.; Ralph, i. 476; _Parl. Hist._ iv. Appendix. The king is

personally struck at in this tract with the utmost fury: the queen is

called Agrippina, in allusion to the infamous charges of Oates;

Monmouth is held up as the hope of the country. "He will stand by you,

therefore you ought to stand by him. He who hath the worst title,

always makes the best king." One Harris was tried for publishing this

pamphlet. The jury at first found him guilty of selling; an equivocal

verdict, by which they probably meant to deny, or at least to

disclaim, any assertion of the libellous character of the publication.

But Scroggs telling them it was their province to say guilty or not

guilty, they returned a verdict of guilty. _State Trials_, vii. 925.

Another arrow dipped in the same poison was a "Letter to a Person of

Honour concerning the Black Box." _Somers Tracts_, viii. 189. The

story of a contract of marriage between the king and Mrs. Waters,

Monmouth's mother, concealed in a black box, had lately been current;

and the former had taken pains to expose its falsehood by a public

examination of the gentleman whose name had been made use of. This

artful tract is intended to keep up the belief of Monmouth's

legitimacy, and even to graft it on the undeniable falsehood of that

tale; as if it had been purposely fabricated to delude the people by

setting them on a wrong scent. See also another libel of the same

class, p. 197.

Though Monmouth's illegitimacy is past all question, it has been

observed by Harris that the Princess of Orange, in writing to her

brother about Mrs. Waters, in 1655, twice names her as his wife.

Thurloe, i. 665, quoted in Harris's _Lives_, iv. 168. But though this

was a scandalous indecency on her part, it proves no more than that

Charles, like other young men in the heat of passion, was foolish

enough to give that appellation to his mistress; and that his sister

humoured him in it.

Sidney mentions a strange piece of Monmouth's presumption. When he

went to dine with the city in October 1680, it was remarked that the

bar, by which the heralds denote illegitimacy, had been taken off the

royal arms on his coach. _Letters to Saville_, p. 54.

[757] _Life of James_, 592 _et post_. Compare Dalrymple, p. 265 _et

post_. Barillon was evidently of opinion that the king would finally

abandon his brother. Sunderland joined the Duchess of Portsmouth, and

was one of the thirty peers who voted for the bill in November 1680.

James charges Godolphin also with deserting him. P. 615. But his name

does not appear in the protest signed by twenty-five peers; though

that of the privy seal, Lord Anglesea, does. The Duchess of Portsmouth

sat near the Commons at Stafford's trial, "dispensing her sweetmeats

and gracious looks among them."--P. 638.

[758] _Life of James_, p. 657.

[759] Il est persuadé que l'autorité royale ne se peut rétablir en

Angleterre que par une guerre civile. Aug. 19, 1680. Dalrymple, 265.

[760] Dalrymple, 277. Nov. 1680.

[761] Marvell's "Growth of Popery," in _State Tracts_, temp. Car. II.

p. 98; _Parl. Hist._ 853. The second reading was carried by 127 to 88.

Serjeant Maynard, who was probably not in the secrets of his party,

seems to have been surprised at their opposition. An objection with

Marvell, and not by any means a bad one, would have been, that the

children of the royal family were to be consigned for education to the

sole government of bishops. The Duke of York, and thirteen other

peers, protested against this bill, not all of them from the same

motives, as may be collected from their names. Lords' Journals, 13th

and 15th March 1679.

[762] Lords Russell and Cavendish, Sir W. Coventry and Sir Thomas

Littleton, seem to have been in favour of limitations. Lord J.

Russell, p. 42; Ralph, 446; Sidney's _Letters_, p. 32. Temple and

Shaftesbury, for opposite reasons, stood alone in the council against

the scheme of limitations. Temple's _Memoirs_.

[763] Commons' Journals, 23rd Nov. 1680, 8th Jan. 1681.

[764] _Life of James_, 634, 671; Dalrymple, p. 307.

[765] Dalrymple, p. 301; _Life of James_, 660, 671. The duke gave

himself up for lost when he heard of the clause in the king's speech

declaring his readiness to hearken to any expedient but the exclusion.

Birch and Hampden, he says, were in favour of this; but Fitzharris's

business set the house in a flame, and determined them to persist in

their former scheme. Reresby says (p. 19, confirmed by _Parl. Hist._

132) it was supported by Sir Thomas Littleton, who is said to have

been originally against the bill of exclusion, as well as Sir William

Coventry. Sidney's _Letters_, p. 32. It was opposed by Jones,

Winnington, Booth, and, if the _Parliamentary History_ be right, by

Hampden and Birch.

[766] Temple's _Memoirs_. He says their revenues in land or offices

amounted to £300,000 per annum; whereas those of the House of Commons

seldom exceeded £400,000. The king objected much to admitting Halifax;

but himself proposed Shaftesbury, much against Temple's wishes. The

funds in Holland rose on the news. Barillon was displeased, and said

it was making "des états, et non des conseils;" which was not without

weight, for the king had declared he would take no measure, nor even

choose any new counsellor, without their consent. But the extreme

disadvantage of the position in which this placed the Crown, rendered

it absolutely certain that it was not submitted to with sincerity.

Lady Portsmouth told Barillon the new ministry was formed in order to

get money from parliament. Another motive, no doubt, was to prevent

the exclusion bill.

[767] _Life of James_, 558. On the king's sudden illness, Aug. 22,

1679, the ruling ministers, Halifax, Sunderland, and Essex, alarmed at

the anarchy which might come on his death, of which Shaftesbury and

Monmouth would profit, sent over for the duke; but soon endeavoured to

make him go into Scotland, and, after a struggle against the king's

tricks to outwit them, succeeded in this object. _Id._ p. 570 _et

post_.

[768] Temple; Reresby, p. 89. "So true it is," he says, "that there is

no wearing the court and country livery together." Thus also Algernon

Sidney, in his letters to Saville, p. 16. "The king certainly inclines

not to be so stiff as formerly in advancing only those that exalt

prerogative; but the Earl of Essex, and some others that are coming

into play thereupon, cannot avoid being suspected of having intentions

different from what they have hitherto professed." He ascribed the

change of ministry at this time to Sunderland: "if he and two more

[Essex and Halifax] can well agree among themselves, I believe they

will have the management of almost all businesses, and may bring much

honour to themselves and good to our nation." April 21, 1679. But he

writes afterwards (Sept. 8) that Halifax and Essex were become very

unpopular. P. 50. "The bare being preferred," says Secretary Coventry,

"maketh some of them suspected, though not criminal." Lord J.

Russell's _Life of Lord Russell_, p. 90.

[769] See the protests in 1679, _passim_.

[770] Temple's _Memoirs_; _Life of James_, 581.

[771] Dalrymple, pp. 230, 237.

[772] See Roger North's account of this court stratagem. _Examen of

Kennet_, 546. The proclamation itself, however, in the _Gazette_, 12th

Dec. 1679, is more strongly worded than we should expect from North's

account of it, and is by no means limited to _tumultuous_ petitions.

[773] _London Gazettes_ of 1680, _passim_.

[774] David Lewis was executed at Usk for saying mass, Aug. 27, 1679.

_State Trials_, vii. 256. Other instances occur in the same volume;

see especially pp. 811, 839, 849, 587. Pemberton was more severe and

unjust towards these unfortunate men than Scroggs. The king, as his

brother tells us, came unwillingly into these severities to prevent

worse. _Life of James_, 583.

[775] Journals, _passim_; North's _Examen_, 377, 561.

[776] They went a little too far, however, when they actually seated

Sir William Waller in Withens's place for Westminster. Ralph, 514.

[777] Journals, Dec. 24, 1680.

[778] _Parl. Hist._ i. 174.

[779] Reresby's _Memoirs_, 106. Lord Halifax and he agreed, he says,

on consideration, that the court party were not only the most

numerous, but the most active and wealthy part of the nation.

[780] It was carried by 219 to 95 (17th Nov.), to address the king to

remove Lord Halifax from his councils and presence for ever. They

resolved, _nem. con._, that no member of that house should accept of

any office or place of profit from the Crown, or any promise of one,

during such time as he should continue a member; and that all

offenders herein should be expelled. 30th Dec. They passed resolutions

against a number of persons by name, whom they suspected to have

advised the king not to pass the bill of exclusion. 7th Jan. 1680.

They resolved unanimously (10th Jan.), that it is the opinion of this

house, that the city of London was burnt in the year 1666 by the

papists, designing thereby to introduce popery and arbitrary power

into this kingdom. They were going on with more resolutions in the

same spirit, when the usher of the black rod appeared to prorogue

them. _Parl. Hist._

[781] Commons' Journals, March 26, 1681.

[782] _Parl. Hist._ ii. 54. Lord Hale doubted whether this were a

statute. But the judges, in 1689, on being consulted by the Lords,

inclined to think that it was one; arguing, I suppose, from the words

"in full parliament," which have been held to imply the presence and

assent of the Commons.

[783] Hatsell's _Precedents_, iv. 54, and Appendix, 347; _State

Trials_, viii. 236, and xii. 1218.

[784] _Commentaries_, vol. iv. c. 19.

[785] Ralph, 564 _et post_; _State Trials_, 223, 427; North's

_Examen_, 274. Fitzharris was an Irish papist, who had evidently had

interviews with the king through Lady Portsmouth. One Hawkins,

afterwards made Dean of Chichester for his pains, published a

narrative of this case full of falsehoods.

[786] _State Trials_, viii. 759. Roger North's remark on this is

worthy of him; "having sworn false, as it is manifest some did before

to one purpose, it is more likely they swore true to the contrary."

_Examen_, p. 117. And Sir Robert Sawyer's observation to the same

effect is also worthy of him. On College's trial, Oates, in his

examination for the prisoner, said, that Turberville had changed

sides; Sawyer, as counsel for the Crown, answered, "Dr. Oates, Mr.

Turberville has not changed sides, you have; he is still a witness for

the king, you are against him." _State Trials_, viii. 639.

The opposite party were a little perplexed by the necessity of

refuting testimony they had relied upon. In a dialogue, entitled

"Ignoramus Vindicated," it is asked, why were Dr. Oates and others

believed against the papists? and the best answer the case admits is

given: "Because his and their testimony was backed by that undeniable

evidence of Coleman's papers, Godfrey's murder, and a thousand other

pregnant circumstances, which makes the case much different from that

when people, of very suspected credit, swear the grossest

improbabilities." But the same witnesses, it is urged, had lately been

believed against the papists. "What! then," replies the advocate of

Shaftesbury, "may not a man be very honest and credible at one time,

and six months after, by necessity, subornation, malice, or twenty

ways, become a notorious villain?"

[787] The true question for a grand juror to ask himself seems to be

this: Is the evidence such as that, if the prisoner can prove nothing

to the contrary, he ought to be convicted? However, where any

considerable doubt exists as to this, as a petty juror ought to

acquit, so a grand juror ought to find the indictment.

[788] Roger North, and the prerogative writers in general, speak of

this inquest as a scandalous piece of perjury, enough to justify the

measures soon afterwards taken against the city. But Ralph, who, at

this period of history, is very impartial, seems to think the jury

warranted by the absurdity of the depositions. It is to be remembered

that the petty juries had shown themselves liable to intimidation, and

that the bench was sold to the court. In modern times, such an

ignoramus could hardly ever be justified. There is strong reason to

believe, that the court had recourse to subornation of evidence

against Shaftesbury. Ralph, 140 _et post_. And the witnesses were

chiefly low Irishmen, in whom he was not likely to have placed

confidence. As to the association found among Shaftesbury's papers, it

was not signed by himself, nor, as I conceive, treasonable, only

binding the associators to oppose the Duke of York, in case of his

coming to the crown. _State Trials_, viii. 786. See also 827 and 835.

[789] If we may believe James II., the populace hooted Shaftesbury

when he was sent to the Tower. Macpherson, 124; _Life of James_, 688.

This was an improvement on the _odit damnatos_. They rejoiced,

however, much more, as he owns, at the ignoramus. P. 714.

[790] See College's case in _State Trials_, viii. 549, and Hawles's

remarks on it, 723; Ralph, 626. It is one of the worst pieces of

judicial iniquity that we find in the whole collection. The written

instructions he had given to his counsel before the trial were taken

away from him, in order to learn the grounds of his defence. North and

Jones, the judges before whom he was tried, afforded him no

protection. But besides this, even if the witnesses had been credible,

it does not appear to me that the facts amounted to treason. Roger

North outdoes himself in his justification of the proceedings on this

trial. _Examen_, p. 587. What would this man have been in power, when

he writes thus in a sort of proscription twenty years after the

revolution! But in justice it should be observed that his portraits of

North and Jones (_Id._ 512 and 517) are excellent specimens of his

inimitable talent for Dutch painting.

[791] _London Gazettes_, 1681, _passim_. Ralph, 592, has spoken too

strongly of their servility, as if they showed a disposition to give

up altogether every right and privilege to the Crown. This may be true

in a very few instances, but is by no means their general tenor. They

are exactly high tory addresses, and nothing more.

[792] _State Trials_, viii. 447. Chief-Justice Pemberton, by whom he

was tried, had strong prejudices against the papists, though well

enough disposed to serve the court in some respects.

[793] The king, James says in 1679, was convinced of the falsehood of

the plot, "while the seeming necessity of his affairs made this

unfortunate prince, for so he may well be termed in this conjuncture,

think he could not be safe but by consenting every day to the

execution of those he knew in his heart to be most innocent; and as

for that notion of letting the law take its course, it was such a

piece of casuistry as had been fatal to the king his father," etc.

562. If this was blamable in 1679, how much more in 1681?

Temple relates, that having objected to leaving some priests to the

law, as the House of Commons had desired in 1679, Halifax said he

would tell every one he was a papist, if he did not concur; and that

the plot must be treated as if it were true, whether it was so or not.

P. 339 (folio edit.). A vile maxim indeed! But as Halifax never showed

any want of candour or humanity, and voted Lord Stafford not guilty

next year, we may doubt whether Temple has represented this quite

exactly.

In reference to Lord Stafford, I will here notice that Lord John

Russell, in a passage deserving very high praise, has shown rather too

much candour in censuring his ancestor (p. 140) on account of the

support he gave (if in fact he did so, for the evidence seems weak) to

the objection raised by the sheriffs, Bethell and Cornish, with

respect to the mode of Stafford's execution. The king having remitted

all the sentence except the beheading, these magistrates thought fit

to consult the House of Commons. Hume talks of Russell's seconding

this "barbarous scruple," as he calls it, and imputes it to faction.

But, notwithstanding the epithet, it is certain that the only question

was between death by the cord and the axe; and if Stafford had been

guilty, as Lord Russell was convinced, of a most atrocious treason, he

could not deserve to be spared the more ignominious punishment. The

truth is, which seems to have escaped both these writers, that if the

king could remit a part of the sentence upon a parliamentary

impeachment, it might considerably affect the question whether he

could not grant a pardon, which the Commons had denied.

[794] See this petition, _Somers Tracts_, viii. 144.

[795] _State Trials_, viii. 1039-1340; Ralph, 717. The majority was

but 104 to 86; a division honourable to the spirit of citizens.

[796] North's _Examen_, 626.

[797] Lady Russell's opinion was, that "it was no more than what her

lord confessed--talk; and it is possible that talk going so far as to

consider, if a remedy for supposed evils might be sought, how it could

be formed." _Life of Lord Russell_, p. 266. It is not easy, however,

to talk long in this manner about the _how_ of treason, without

incurring the penalties of it.

[798] See this business well discussed by the acute and indefatigable

Ralph, p. 722, and by Lord John Russell, p. 253. See also _State

Trials_, ix. 358 _et post_. There appears no cause for doubting the

reality of what is called the Ryehouse plot. The case against Walcot

(_Id._ 519) was pretty well proved; but his own confession completely

hanged him and his friends too. His attainder was reversed after the

revolution, but only on account of some technical errors, not

essential to the merits of the case.

[799] _State Trials_, ix. 577. Lord Essex cut his throat in the Tower.

He was a man of the most excellent qualities, but subject to

constitutional melancholy which overcame his fortitude; an event the

more to be deplored, as there seems to have been no possibility of his

being convicted. A suspicion, as is well known, obtained credit with

the enemies of the court, that Lord Essex was murdered; and some

evidence was brought forward by the zeal of one Braddon. The late

editor of the _State Trials_ seems a little inclined to revive this

report, which even Harris (_Life of Charles_, p. 352) does not venture

to accredit; and I am surprised to find Lord John Russell observe, "It

would be idle, at the present time, to pretend to give any opinion on

the subject."--P. 182. This I can by no means admit. We have, on the

one side, some testimonies by children, who frequently invent and

persist in falsehoods with no conceivable motive. But, on the other

hand, we are to suppose, that Charles II. and the Duke of York caused

a detestable murder to be perpetrated on one towards whom they had

never shown any hostility, and in whose death they had no interest.

Each of these princes had faults enough; but I may venture to say that

they were totally incapable of such a crime. One of the presumptive

arguments of Braddon, in a pamphlet published long afterwards, is,

that the king and his brother were in the Tower on the morning of Lord

Essex's death. If this leads to anything, we are to believe that

Charles the Second, like the tyrant in a Grub Street tragedy, came to

kill his prisoner with his own hands. Any man of ordinary

understanding (which seems not to have been the case with Mr. Braddon)

must perceive that the circumstance tends to repel suspicion rather

than the contrary. See the whole of this, including Braddon's

pamphlet, in _State Trials_, ix. 1127.

[800] _State Trials_, 615. Sawyer told Lord Russell, when he applied

to have his trial put off, that he would not have given the king an

hour's notice to save his life. _Id._ 582. Yet he could not pretend

that the prisoner had any concern in the assassination plot.

[801] The act annulling Lord Russell's attainder recites him to have

been "wrongfully convicted by partial and unjust constructions of

law." _State Trials_, ix. 695. Several pamphlets were published after

the revolution by Sir Robert Atkins and Sir John Hawles against the

conduct of the court in this trial, and by Sir Bartholomew Shower in

behalf of it. These are in the _State Trials_. But Holt, by laying

down the principle of constructive treason in Ashton's case,

established for ever the legality of Pemberton's doctrine, and indeed

carried it a good deal further.

[802] There seems little doubt, that the juries were packed through a

conspiracy of the sheriffs with Burton and Graham, solicitors for the

Crown. _State Trials_, ix. 932. These two men ran away at the

revolution; but Roger North vindicates their characters, and those who

trust in him may think them honest.

[803] _State Trials_, ix. 818.

[804] _Id._ 846. Yet in summing up the evidence, he repeated all West

and Keeling had thus said at second-hand, without reminding the jury

that it was not legal testimony. _Id._ 899. It would be said by his

advocates, if any are left, that these witnesses must have been left

out of the question, since there could otherwise have been no dispute

about the written paper. But they were undoubtedly intended to prop up

Howard's evidence, which had been so much shaken by his previous

declaration, that he knew of no conspiracy.

[805] This is pointed out, perhaps for the first time, in an excellent

modern law-book, Phillipps's _Law of Evidence_. Yet the act for the

reversal of Sidney's attainder declares in the preamble, that "the

paper, supposed to be in his handwriting, was not proved by the

testimony of any one witness to be written by him, but the jury was

directed to believe it by comparing it with other writings of the said

Algernon." _State Trials_, 997. This does not appear to have been the

case; and though Jefferies is said to have garbled the manuscript

trial before it was printed (for all the trials, at this time, were

published by authority, which makes them much better evidence against

the judges than for them), yet he can hardly have substituted so much

testimony without its attracting the notice of Atkins and Hawles, who

wrote after the revolution. However, in Hayes's case, _State Trials_,

x. 312, though the prisoner's handwriting to a letter was proved in

the usual way by persons who had seen him write, yet this letter was

also shown to the jury, along with some of his acknowledged writing,

for the purpose of their comparison. It is possible, therefore, that

the same may have been done on Sidney's trial, though the circumstance

does not appear. Jefferies indeed says, "comparison of hands was

allowed for good proof in Sidney's case." _Id._ 313. But I do not

believe that the expression was used in that age so precisely as it is

at present; and it is well known to lawyers that the rules of evidence

on this subject have only been distinctly laid down within the memory

of the present generation.

[806] See Harris's _Lives_, v. 347.

[807] _State Trials_, x. 105.

[808] The grand jury of Northamptonshire, in 1683, "present it as very

expedient and necessary for securing the peace of this country, that

all ill affected persons may give security for the peace;" specifying

a number of gentlemen of the first families, as the names of Montagu,

Langham, etc., show. _Somers Tracts_, viii. 409.

[809] Ralph, p. 768; Harris's _Lives_, v. 321.

[810] This book of Sherlock, printed in 1684, is the most able

treatise on that side. His proposition is that "sovereign princes, or

the supreme power in any nation, in whomsoever placed, is in all cases

irresistible." He infers from the statute 13 Car. II. declaring it

unlawful, under any pretence, to wage war, even defensive against the

king, that the supreme power is in him; for he who is unaccountable

and irresistible, is supreme. There are some, he owns, who contend

that the higher powers mentioned by St. Paul meant the law, and that

when princes violate the laws, we may defend their legal authority

against their personal usurpations. He answers this very feebly. "No

law can come into the notion and definition of supreme and sovereign

powers; such a prince is under the direction, but cannot possibly be

said to be under the government of the law, because there is no

superior power to take cognisance of his breach of it, and a law has

no authority to govern where there is no power to punish."--P. 114.

"These men think," he says (p. 126), "that all civil authority is

founded in consent, as if there were no natural lord of the world, or

all mankind came free and independent into the world. This is a

contradiction to what at other times they will grant, that the

institution of civil power and authority is from God; and indeed if it

be not, I know not how any prince can justify the taking away the life

of any man, whatever crime he has been guilty of. For no man has power

of his own life, and therefore cannot give this power to another;

which proves that the power of capital punishments cannot result from

mere consent, but from a superior authority, which is lord of life and

death." This is plausibly urged, and is not refuted in a moment. He

next comes to an objection, which eventually he was compelled to

admit, with some discredit to his consistency and disinterestedness.

"'Is the power of victorious rebels and usurpers from God? Did Oliver

Cromwell receive his power from God? then it seems it was unlawful to

resist him too, or to conspire against him; then all those loyal

subjects who refused to submit to him when he had got the power in his

hands were rebels and traitors.' To this I answer, that the most

prosperous rebel is not the higher powers, while our natural prince,

to whom we owe obedience and subjection, is in being. And therefore,

though such men may get the power into their hands by God's

permission, yet not by God's ordinance; and he who resists them does

not resist the ordinance of God, but the usurpations of men. In

hereditary kingdoms, the king never dies, but the same minute that the

natural person of one king dies, the crown descends upon the next of

blood; and therefore, he who rebelleth against the father, and murders

him, continues a rebel in the reign of the son, which commences with

his father's death. It is otherwise, indeed, where none can pretend a

greater title to the crown than the usurper, for there possession of

power seems to give a right."--P. 127.

Sherlock began to preach in a very different manner as soon as James

showed a disposition to set up his own church. "It is no act of

loyalty," he told the House of Commons, May 29, 1685, "to accommodate

or compliment away our religion and its legal securities." _Good

Advice to the Pulpits._

[811] P. 81.

[812] P. 95.

[813] Pp. 98, 100.

[814] P. 100.

[815] This treatise, subjoined to one of greater length, entitled the

"Freeholder's Grand Inquest," was published in 1679; but the

"Patriarcha" not till 1685.

[816] P. 39.

[817] P. 46.

[818] Collier, 902; _Somers Tracts_, viii. 420.

[819] Dalrymple, appendix 8; _Life of James_, 691. He pretended to

come into a proposal of the Dutch for an alliance with Spain and the

empire against the fresh encroachments of France, and to call a

parliament for that purpose, but with no sincere intention, as he

assured Barillon. "Je n'ai aucune intention d'assembler le parlement;

ces sont des diables qui veulent ma ruine." Dalrymple, 15.

[820] He took 100,000 livres for allowing the French to seize

Luxemberg; after this he offered his arbitration, and on Spain's

refusal, laid the fault on her, though already bribed to decide in

favour of France. Lord Rochester was a party in all these base

transactions. The acquisition of Luxemberg and Strasburg was of the

utmost importance to Louis, as they gave him a predominating influence

over the four Rhenish electors, through whom he hoped to procure the

election of the dauphin as king of the Romans. _Id._ 36.

[821] Dalrymple, appendix 74; Burnet; Mazure, _Hist. de la Révolution

de 1688_, i. 340, 372. This is confirmed by, or rather confirms, the

very curious notes found in the Duke of Monmouth's pocket-book when he

was taken after the battle of Sedgemoor, and published in the appendix

to Welwood's _Memoirs_. Though we should rather see more external

evidence of their authority than, so far as I know, has been produced,

they have great marks of it in themselves; and it is not impossible

that, after the revolution, Welwood may have obtained them from the

secretary of state's office.

[822] It is mentioned by Mr. Fox, as a tradition in the Duke of

Richmond's family, that the Duchess of Portsmouth believed Charles II.

to have been poisoned. This I find confirmed in a letter read on the

trial of Francis Francia, indicted for treason in 1715. "The Duchess

of Portsmouth, who is at present here, gives a great deal of offence,

as I am informed, by pretending to prove that the late King James had

poisoned his brother Charles; it was not expected, that after so many

years' retirement in France, she should come hither to revive that

vulgar report, which at so critical a time cannot be for any good

purpose." _State Trials_, xv. 948. It is almost needless to say that

the suspicion was wholly unwarrantable.

I have since been informed, on the best authority, that Mr. Fox did

not derive his authority from a tradition in the Duke of Richmond's

family, that of his own mother, as his editor had very naturally

conjectured, but from his father, the first Lord Holland, who, while a

young man travelling in France, had become acquainted with the Duchess

of Portsmouth.