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diff --git a/old/44410.txt b/old/44410.txt new file mode 100644 index 0000000..039b7c1 --- /dev/null +++ b/old/44410.txt @@ -0,0 +1,19714 @@ +The Project Gutenberg EBook of Constitutional History of England, volume 3 +of 3, by Henry Hallam + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Constitutional History of England, volume 3 of 3 + Henry VII to George II + +Author: Henry Hallam + +Release Date: December 11, 2013 [EBook #44410] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK CONST. HISTORY OF ENGLAND, VOL 3 *** + + + + +Produced by Melissa McDaniel and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive) + + + + + + + +Transcriber's Note: + + Inconsistent hyphenation and spelling in the original document have + been preserved. Obvious typographical errors have been corrected. + + Italic text is denoted by _underscores_ and bold text by =equal + signs=. + + On page 74, Christiern II. of Denmark may be a typo. + Footnote 36, peer should possibly be peers. + Footnote 133, confidents should possibly be confidants. + Footnote 210, domanial should possibly be domainal. + + + + + EVERYMAN'S LIBRARY + EDITED BY ERNEST RHYS + + HISTORY + + HALLAM'S + CONSTITUTIONAL HISTORY + WITH AN INTRODUCTION BY + PROFESSOR J. H. MORGAN + VOLUME THREE + + + + + THE PUBLISHERS OF _EVERYMAN'S LIBRARY_ WILL BE PLEASED TO SEND + FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND PROJECTED + VOLUMES TO BE COMPRISED UNDER THE FOLLOWING THIRTEEN HEADINGS: + + TRAVEL . SCIENCE . FICTION + THEOLOGY & PHILOSOPHY + HISTORY . CLASSICAL + FOR YOUNG PEOPLE + ESSAYS . ORATORY + POETRY & DRAMA + BIOGRAPHY + REFERENCE + ROMANCE + + IN FOUR STYLES OF BINDING: CLOTH, FLAT BACK, COLOURED TOP; + LEATHER, ROUND CORNERS, GILT TOP; LIBRARY BINDING IN CLOTH, & + QUARTER PIGSKIN + + LONDON: J. M. DENT & SONS, LTD. + + NEW YORK: E. P. DUTTON & CO. + + + + + "CONSIDER + HISTORY + WITH THE + BEGINNINGS OF + IT STRETCHING + DIMLY INTO THE + REMOTE TIME; EMERGING + DARKLY + OUT OF THE + MYSTERIOUS + ETERNITY: + THE TRUE EPIC + POEM AND UNIVERSAL + DIVINE + SCRIPTURE." + + CARLYLE + + + + + CONSTITUTIONAL HISTORY OF ENGLAND + HENRY VII TO GEORGE II. + + BY HENRY HALLAM: VOL. 3 + + LONDON: PUBLISHED + by J. M. DENT & SONS LTD + AND IN NEW YORK + BY E. P. DUTTON & CO + + + + +CONTENTS + + + CHAPTER XIII + + ON THE STATE OF THE CONSTITUTION UNDER CHARLES II. + + Effect of the Press -- Restrictions upon it before and after the + Restoration -- Licensing Acts -- Political Writings checked by + the Judges -- Instances of illegal Proclamations not numerous -- + Juries fined for Verdicts -- Question of their Right to return a + General Verdict -- Habeas Corpus Act passed -- Differences + between Lords and Commons -- Judicial Powers of the Lords + historically traced -- Their Pretensions about the Time of the + Restoration -- Resistance made by the Commons -- Dispute about + their original Jurisdiction -- And that in Appeals from Courts of + Equity -- Question of the exclusive Right of the Commons as to + Money-bills -- Its History -- The Right extended farther -- State + of the Upper House under the Tudors and Stuarts -- Augmentation + of the Temporal Lords -- State of the Commons -- Increase of + their Members -- Question as to Rights of Election -- Four + different Theories as to the Original Principle -- Their + Probability considered Page 1 + + CHAPTER XIV + + THE REIGN OF JAMES II. + + Designs of the King -- Parliament of 1685 -- King's Intention to + repeal the Test Act -- Deceived as to the Dispositions of his + Subjects -- Prorogation of Parliament -- Dispensing Power + confirmed by the Judges -- Ecclesiastical Commission -- King's + Scheme of establishing Popery -- Dismissal of Lord Rochester -- + Prince of Orange alarmed -- Plan of setting the Princess aside -- + Rejected by the King -- Overtures of the Malcontents to Prince of + Orange -- Declaration for Liberty of Conscience -- Addresses in + favour of it -- New-modelling of the Corporations -- Affair of + Magdalen College -- Infatuation of the King -- His Coldness + towards Louis -- Invitation signed to the Prince of Orange -- + Birth of Prince of Wales -- Justice and Necessity of the + Revolution -- Favourable Circumstances attending it -- Its + salutary Consequences -- Proceedings of the Convention -- Ended + by the Elevation of William and Mary to the Throne Page 43 + + CHAPTER XV + + ON THE REIGN OF WILLIAM III. + + Declaration of Rights -- Bill of Rights -- Military Force + without Consent declared illegal -- Discontent with the new + Government -- its Causes -- Incompatibility of the Revolution + with received Principles -- Character and Errors of William -- + Jealousy of the Whigs -- Bill of Indemnity -- Bill for Restoring + Corporations -- Settlement of the Revenue -- Appropriation of + Supplies -- Dissatisfaction of the King -- No Republican Party in + Existence -- William employs Tories in Ministry -- Intrigues with + the late King -- Schemes for his Restoration -- Attainder of Sir + John Fenwick -- Ill Success of the War -- Its Expenses -- Treaty + of Ryswick -- Jealousy of the Commons -- Army reduced -- Irish + Forfeitures resumed -- Parliamentary Enquiries -- Treaties of + Partition -- Improvements in Constitution under William -- Bill + for Triennial Parliaments -- Law of Treason -- Statute of Edward + III. -- Its constructive Interpretation -- Statute of William + III. -- Liberty of the Press -- Law of Libel -- Religious + Toleration -- Attempt at Comprehension -- Schism of the + Non-jurors -- Laws against Roman Catholics -- Act of Settlement + -- Limitations of Prerogative contained in it -- Privy Council + superseded by a Cabinet -- Exclusion of Placemen and Pensioners + from Parliament -- Independence of Judges -- Oath of Abjuration + Page 90 + + CHAPTER XVI + + ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE + I., AND GEORGE II. + + Termination of Contest between the Crown and Parliament -- + Distinctive Principles of Whigs and Tories -- Changes effected in + these by Circumstances -- Impeachment of Sacheverel displays them + again -- Revolutions in the Ministry under Anne -- War of the + Succession -- Treaty of Peace broken off -- Renewed again by the + Tory Government -- Arguments for and against the Treaty of + Utrecht -- The Negotiation mismanaged -- Intrigues of the + Jacobites -- Some of the Ministers engage in them -- Just alarm + for the Hanover Succession -- Accession of George I. -- Whigs + come into Power -- Great Disaffection in the Kingdom -- + Impeachment of Tory Ministers -- Bill for septennial Parliaments + -- Peerage Bill -- Jacobitism among the Clergy -- Convocation -- + Its Encroachments -- Hoadley -- Convocation no longer suffered to + sit -- Infringements of the Toleration by Statutes under Anne -- + They are repealed by the Whigs -- Principles of Toleration fully + established -- Banishment of Atterbury -- Decline of the + Jacobites -- Prejudices against the reigning Family -- Jealousy + of the Crown -- Changes in the Constitution whereon it was + founded -- Permanent military Force -- Apprehensions from it -- + Establishment of Militia -- Influence over Parliament by Places + and Pensions -- Attempts to restrain it -- Place Bill of 1743 -- + Secret Corruption -- Commitments for Breach of Privilege -- of + Members for Offences -- of Strangers for Offences against Members + -- or for Offences against the House -- Kentish Petition of 1701 + -- Dispute with Lords about Aylesbury Election -- Proceedings + against Mr. Murray in 1751 -- Commitments for Offences + unconnected with the House -- Privileges of the House not + controllable by Courts of Law -- Danger of stretching this too + far -- Extension of Penal Laws -- Diminution of personal + Authority of the Crown -- Causes of this -- Party Connections -- + Influence of Political Writings -- Publication of Debates -- + Increased Influence of the Middle Ranks Page 175 + + CHAPTER XVII + + ON THE CONSTITUTION OF SCOTLAND + + Early State of Scotland -- Introduction of Feudal System -- + Scots Parliament -- Power of the Aristocracy -- Royal Influence + in Parliament -- Judicial Power -- Court of Session -- + Reformation -- Power of the Presbyterian Clergy -- Their Attempts + at Independence on the State -- Andrew Melville -- Success of + James VI. in restraining them -- Establishment of Episcopacy -- + Innovations of Charles I. -- Arbitrary Government -- Civil War -- + Tyrannical Government of Charles II. -- Reign of James VII. -- + Revolution and Establishment of Presbytery -- Reign of William + III. -- Act of Security -- Union -- Gradual Decline of Jacobitism + Page 266 + + CHAPTER XVIII + + ON THE CONSTITUTION OF IRELAND + + Ancient State of Ireland -- Its Kingdoms and Chieftainships -- + Law of Tanistry and Gavel-kind -- Rude State of Society -- + Invasion of Henry II. -- Acquisitions of English Barons -- Forms + of English Constitution established -- Exclusion of Native Irish + from them -- Degeneracy of English Settlers -- Parliament of + Ireland -- Disorderly State of the Island -- The Irish regain + part of their Territories -- English Law confined to the Pale -- + Poyning's Law -- Royal Authority revives under Henry VIII. -- + Resistance of Irish to Act of Supremacy -- Protestant Church + established by Elizabeth -- Effects of this Measure -- Rebellions + of her Reign -- Opposition in Parliament -- Arbitrary Proceedings + of Sir Henry Sidney -- James I. -- Laws against Catholics + enforced -- English Law established throughout Ireland -- + Settlements of English in Munster, Ulster, and other Parts -- + Injustice attending them -- Constitution of Irish Parliament -- + Charles I. promises Graces to the Irish -- Does not confirm them + -- Administration of Strafford -- Rebellion of 1641 -- + Subjugation of Irish by Cromwell -- Restoration of Charles II. -- + Act of Settlement -- Hopes of Catholics under Charles and James + -- War of 1689, and final Reduction of Ireland -- Penal Laws + against Catholics -- Dependence of Irish on English Parliament -- + Growth of a Patriotic Party in 1753 Page 299 + + + + +CONSTITUTIONAL HISTORY OF ENGLAND + +FROM HENRY VII. TO GEORGE II. + + + + +CHAPTER XIII + +ON THE STATE OF THE CONSTITUTION UNDER CHARLES II. + + +It may seem rather an extraordinary position, after the last chapters, +yet is strictly true, that the fundamental privileges of the subject +were less invaded, the prerogative swerved into fewer excesses, during +the reign of Charles II. than perhaps in any former period of equal +length. Thanks to the patriot energies of Selden and Eliot, of Pym and +Hampden, the constitutional boundaries of royal power had been so well +established that no minister was daring enough to attempt any flagrant +and general violation of them. The frequent session of parliament, and +its high estimation of its own privileges, furnished a security +against illegal taxation. Nothing of this sort has been imputed to the +government of Charles, the first King of England, perhaps, whose reign +was wholly free from such a charge. And as the nation happily escaped +the attempts that were made after the restoration, to revive the +star-chamber and high-commission courts, there was no means of +chastising political delinquencies, except through the regular +tribunals of justice, and through the verdict of a jury. Ill as the +one were often constituted, and submissive as the other might often be +found, they afforded something more of a guarantee, were it only by +the publicity of their proceedings, than the dark and silent divan of +courtiers and prelates who sat in judgment under the two former kings. +Though the bench was frequently subservient, the bar contained +high-spirited advocates, whose firm defence of their clients the +judges often reproved, but no longer affected to punish. The press, +above all, was in continual service. An eagerness to peruse cheap and +ephemeral tracts on all subjects of passing interest had prevailed +ever since the reformation. These had been extraordinarily multiplied +from the meeting of the long parliament. Some thousand pamphlets of +different descriptions, written between that time and the restoration, +may be found in the British Museum; and no collection can be supposed +to be perfect. It would have required the summary process and stern +severity of the court of star-chamber to repress this torrent, or +reduce it to those bounds which a government is apt to consider as +secure. But the measures taken with this view under Charles II. +require to be distinctly noticed. + +_Effect of the press_--_Restrictions upon it before and after the +restoration._--In the reign of Henry VIII., when the political +importance of the art of printing, especially in the great question of +the reformation, began to be apprehended, it was thought necessary to +assume an absolute control over it, partly by the king's general +prerogative, and still more by virtue of his ecclesiastical +supremacy.[1] Thus it became usual to grant by letters patent the +exclusive right of printing the Bible or religious books, and +afterwards all others. The privilege of keeping presses was limited to +the members of the stationers' company, who were bound by regulations +established in the reign of Mary by the star-chamber, for the +contravention of which they incurred the speedy chastisement of that +vigilant tribunal. These regulations not only limited the number of +presses, and of men who should be employed on them, but subjected new +publications to the previous inspection of a licencer. The long +parliament did not hesitate to copy this precedent of a tyranny they +had overthrown; and by repeated ordinances against unlicensed +printing, hindered, as far as in them lay, this great instrument of +political power from serving the purposes of their adversaries. Every +government, however popular in name or origin, must have some +uneasiness from the great mass of the multitude, some vicissitudes of +public opinion to apprehend; and experience shows that republics, +especially in a revolutionary season, shrink as instinctively, and +sometimes as reasonably, from an open licence of the tongue and pen, +as the most jealous court. We read the noble apology of Milton for the +freedom of the press with admiration; but it had little influence on +the parliament to whom it was addressed. + +_Licensing acts._--It might easily be anticipated, from the general +spirit of Lord Clarendon's administration, that he would not suffer +the press to emancipate itself from these established shackles.[2] A +bill for the regulation of printing failed in 1661, from the Commons' +jealousy of the Peers who had inserted a clause exempting their own +houses from search.[3] But next year a statute was enacted, which, +reciting the well-government and regulating of printers and +printing-presses to be matter of public care and concernment, and that +by the general licentiousness of the late times many evil-disposed +persons had been encouraged to print and sell heretical and seditious +books, prohibits every private person from printing any book or +pamphlet, unless entered with the stationers' company, and duly +licensed in the following manner; to wit, books of law by the +chancellor or one of the chief justices, of history and politics by +the secretary of state, of heraldry by the kings at arms, of divinity, +physic or philosophy, by the bishops of Canterbury or London, or if +printed in either university, by its chancellor. The number of +master-printers was limited to twenty; they were to give security, to +affix their names, and to declare the author, if required by the +licencer. The king's messengers, by warrant from a secretary of state, +or the master and wardens of the stationers' company, were empowered +to seize unlicensed copies wherever they should think fit to search +for them, and, in case they should find any unlicensed book suspected +to contain matters contrary to the church or state, they were to bring +them to the two bishops before mentioned, or one of the secretaries. +No books were allowed to be printed out of London, except in York and +in the universities. The penalties for printing without licence were +of course heavy.[4] This act was only to last three years; and after +being twice renewed (the last time until the conclusion of the first +session of the next parliament), expired consequently in 1679; an aera +when the House of Commons were happily in so different a temper that +any attempt to revive it must have proved abortive. During its +continuance, the business of licensing books was entrusted to Sir +Roger L'Estrange, a well-known pamphleteer of that age, and himself a +most scurrilous libeller in behalf of the party he espoused, that of +popery and despotic power. It is hardly necessary to remind the reader +of the objections that were raised to one or two lines in _Paradise +Lost_. + +_Political writings checked by the judges._--Though a previous licence +ceased to be necessary, it was held by all the judges, having met for +this purpose (if we believe Chief Justice Scroggs) by the king's +command, that all books scandalous to the government or to private +persons may be seized, and the authors or those exposing them +punished: and that all writers of false news, though not scandalous or +seditious, are indictable on that account.[5] But in a subsequent +trial he informs the jury that, "when by the king's command we were to +give in our opinion what was to be done in point of regulation of the +press, we did all subscribe that to print or publish any news, books, +or pamphlets of news whatsoever is illegal; that it is a manifest +intent to the breach of the peace, and they may be proceeded against +by law as an illegal thing.[6] Suppose now that this thing is not +scandalous, what then? If there had been no reflection in this book at +all, yet it is _illicite_; and the author ought to be convicted for +it. And that is for a public notice to all people, and especially +printers and booksellers, that they ought to print no book or pamphlet +of news whatsoever without authority." The pretended libel in this +case was a periodical pamphlet, entitled the _Weekly Pacquet of Advice +from Rome_; being rather a virulent attack on popery, than serving the +purpose of a newspaper. These extraordinary propositions were so far +from being loosely advanced, that the court of king's bench proceeded +to make an order, that the book should no longer be printed or +published by any person whatsoever.[7] Such an order was evidently +beyond the competence of that court, were even the prerogative of the +king in council as high as its warmest advocates could strain it. It +formed accordingly one article of the impeachment voted against +Scroggs in the next session.[8] Another was for issuing general +warrants (that is, warrants wherein no names are mentioned) to seize +seditious libels and apprehend their authors.[9] But this impeachment +having fallen to the ground, no check was put to general warrants, at +least from the secretary of state, till the famous judgment of the +court of common pleas in 1764. + +_Instances of illegal proclamations not numerous._--Those +encroachments on the legislative supremacy of parliament, and on the +personal rights of the subject, by means of proclamations issued from +the privy council, which had rendered former princes of both the Tudor +and Stuart families almost arbitrary masters of their people, had +fallen with the odious tribunal by which they were enforced. The king +was restored to nothing but what the law had preserved to him. Few +instances appear of illegal proclamations in his reign. One of these, +in 1665, required all officers and soldiers who had served in the +armies of the late usurped powers to depart the cities of London and +Westminster, and not to return within twenty miles of them before the +November following. This seems connected with the well-grounded +apprehension of a republican conspiracy.[10] Another, immediately +after the fire of London, directed the mode in which houses should be +rebuilt, and enjoined the lord mayor and other city magistrates to +pull down whatsoever obstinate and refractory persons might presume to +erect upon pretence that the ground was their own; and especially that +no houses of timber should be erected for the future.[11] Though the +public benefit of this restriction, and of some order as to the +rebuilding of a city which had been destroyed in great measure through +the want of it, was sufficiently manifest, it is impossible to justify +the tone and tenor of this proclamation; and more particularly as the +meeting of parliament was very near at hand. But an act having passed +therein for the same purpose, the proclamation must be considered as +having had little effect. Another instance, and far less capable of +extenuation, is a proclamation for shutting up coffee-houses, in +December 1675. I have already mentioned this as an intended measure of +Lord Clarendon. Coffee-houses were all at that time subject to a +licence, granted by the magistrates at quarter sessions. But, the +licences having been granted for a certain time, it was justly +questioned whether they could in any manner be revoked. This +proclamation being of such disputable legality, the judges, according +to North, were consulted, and intimating to the council that they were +not agreed in opinion upon the most material questions submitted to +them, it seemed advisable to recall it.[12] In this essential matter +of proclamations, therefore, the administration of Charles II. is very +advantageously compared with that of his father; and considering at +the same time the entire cessation of impositions of money without +consent of parliament, we must admit that, however dark might be his +designs, there were no such general infringements of public liberty in +his reign as had continually occurred before the long parliament. + +One undeniable fundamental privilege had survived the shocks of every +revolution; and in the worst times, except those of the late +usurpation, had been the standing record of primeval liberty--the +trial by jury: whatever infringement had been made on this, in many +cases of misdemeanour, by the pretended jurisdiction of the +star-chamber, it was impossible, after the bold reformers of 1641 had +lopped off that unsightly excrescence from the constitution, to +prevent a criminal charge from passing the legal course of +investigation through the inquest of a grand jury, and the verdict in +open court of a petty jury. But the judges, and other ministers of +justice, for the sake of their own authority or that of the Crown, +devised various means of subjecting juries to their own direction, by +intimidation, by unfair returns of the panel, or by narrowing the +boundaries of their lawful function. + +_Juries fined for verdicts._--It is said to have been the practice in +early times, as I have mentioned from Sir Thomas Smith in another +place, to fine juries for returning verdicts against the direction of +the court, even as to matter of evidence, or to summon them before the +star-chamber. It seems that instances of this kind were not very +numerous after the accession of Elizabeth; yet a small number occur in +our books of reports. They were probably sufficient to keep juries in +much awe. But after the restoration, two judges, Hyde and Keeling, +successively chief justices of the king's bench, took on them to +exercise a pretended power, which had at least been intermitted in the +time of the commonwealth. The grand jury of Somerset having found a +bill for manslaughter instead of murder, against the advice of the +latter judge, were summoned before the court of king's bench, and +dismissed with a reprimand instead of a fine.[13] In other cases fines +were set on petty juries for acquittals against the judge's direction. +This unusual and dangerous inroad on so important a right attracted +the notice of the House of Commons; and a committee was appointed, who +reported some strong resolutions against Keeling for illegal and +arbitrary proceedings in his office, the last of which was, that he be +brought to trial, in order to condign punishment, in such manner as +the house should deem expedient. But the chief justice, having +requested to be heard at the bar, so far extenuated his offence that +the house, after resolving that the practice of fining or imprisoning +jurors is illegal, came to a second resolution to proceed no farther +against him.[14] + +_Question of their right to return a general verdict._--The +precedents, however, which these judges endeavoured to establish, were +repelled in a more decisive manner than by a resolution of the House +of Commons. For in two cases, where the fines thus imposed upon jurors +had been estreated into the exchequer, Hale, then chief baron, with +the advice of most of the judges of England, as he informs us, stayed +process; and in a subsequent case it was resolved by all the judges, +except one, that it was against law to fine a jury for giving a +verdict contrary to the court's direction. Yet notwithstanding this +very recent determination, the recorder of London, in 1670, upon the +acquittal of the quakers, Penn and Mead, on an indictment for an +unlawful assembly, imposed a fine of forty marks on each of the +jury.[15] Bushell, one of their number, being committed for +non-payment of this fine, sued his writ of habeas corpus from the +court of common pleas; and on the return made that he had been +committed for finding a verdict against full and manifest evidence, +and against the direction of the court, Chief Justice Vaughan held the +ground to be insufficient, and discharged the party. In his reported +judgment on this occasion, he maintains the practice of fining jurors, +merely on this account, to be comparatively recent, and clearly +against law.[16] No later instance of it is recorded; and perhaps it +can only be ascribed to the violence that still prevailed in the House +of Commons against nonconformists, that the recorder escaped its +animadversion. + +In this judgment of the Chief Justice Vaughan, he was led to enter on +a question much controverted in later times, the legal right of the +jury, without the direction of the judge, to find a general verdict in +criminal cases, where it determines not only the truth of the facts as +deposed, but their quality of guilt or innocence; or as it is +commonly, though not perhaps quite accurately worded, to judge of the +law as well as the fact. It is a received maxim with us, that the +judge cannot decide on questions of fact, nor the jury on those of +law. Whenever the general principle, or what may be termed the major +proposition of the syllogism, which every litigated case contains, can +be extracted from the particular circumstances to which it is supposed +to apply, the court pronounce their own determination, without +reference to a jury. The province of the latter, however, though it +properly extend not to any general decision of the law, is certainly +not bounded, at least in modern times, to a mere estimate of the truth +of testimony. The intention of the litigant parties in civil matters, +of the accused in crimes, is in every case a matter of inference from +the testimony or from the acknowledged facts of the case; and wherever +that intention is material to the issue, is constantly left for the +jury's deliberation. There are indeed rules in criminal proceedings +which supersede this consideration; and where, as it is expressed, +the law presumes the intention in determining the offence. Thus, in +the common instance of murder or manslaughter, the jury cannot legally +determine that provocation to be sufficient, which by the settled +rules of law is otherwise; nor can they, in any case, set up novel and +arbitrary constructions of their own without a disregard of their +duty. Unfortunately it has been sometimes the disposition of judges to +claim to themselves the absolute interpretation of facts, and the +exclusive right of drawing inferences from them, as it has +occasionally, though not perhaps with so much danger, been the failing +of juries to make their right of returning a general verdict +subservient to faction or prejudice. Vaughan did not of course mean to +encourage any petulance in juries that should lead them to pronounce +on the law, nor does he expatiate so largely on their power as has +sometimes since been usual; but confines himself to a narrow, though +conclusive line of argument, that as every issue of fact must be +supported by testimony, upon the truth of which the jury are +exclusively to decide, they cannot be guilty of any legal misdemeanour +in returning their verdict, though apparently against the direction of +the court in point of law; since it cannot ever be proved that they +believed the evidence upon which that direction must have rested.[17] + +_Habeas corpus act passed._--I have already pointed out to the +reader's notice that article of Clarendon's impeachment which charges +him with having caused many persons to be imprisoned against law.[18] +These were released by the Duke of Buckingham's administration, which +in several respects acted on a more liberal principle than any other +in this reign. The practice was not however wholly discontinued. +Jenkes, a citizen of London on the popular or factious side, having +been committed by the king in council for a mutinous speech in +Guildhall, the justices at quarter sessions refused to admit him to +bail, on pretence that he had been committed by a superior court; or +to try him, because he was not entered in the calendar of prisoners. +The chancellor, on application for a habeas corpus, declined to issue +it during the vacation; and the chief justice of the king's bench, to +whom, in the next place, the friends of Jenkes had recourse, made so +many difficulties that he lay in prison for several weeks.[19] This +has been commonly said to have produced the famous act of habeas +corpus. But this is not truly stated. The arbitrary proceedings of +Lord Clarendon were what really gave rise to it. A bill to prevent the +refusal of the writ of habeas corpus was brought into the house on +April 10, 1668, but did not pass the committee in that session.[20] +But another to the same purpose, probably more remedial, was sent up +to the Lords in March 1669-70.[21] It failed of success in the upper +house; but the Commons continued to repeat their struggle for this +important measure, and in the session of 1673-4 passed two bills, one +to prevent the imprisonment of the subject in gaols beyond the seas, +another to give a more expeditious use of the writ of habeas corpus in +criminal matters.[22] The same or similar bills appear to have gone up +to the Lords in 1675. It was not till 1676 that the delay of Jenkes's +habeas corpus took place. And this affair seems to have had so +trifling an influence that these bills were not revived for the next +two years, notwithstanding the tempests that agitated the house during +that period.[23] But in the short parliament of 1679, they appear to +have been consolidated into one, that having met with better success +among the Lords, passed into a statute, and is generally denominated +the habeas corpus act.[24] + +It is a very common mistake, and that not only among foreigners, but +many from whom some knowledge of our constitutional laws might be +expected, to suppose that this statute of Charles II. enlarged in a +great degree our liberties, and forms a sort of epoch in their +history. But though a very beneficial enactment, and eminently +remedial in many cases of illegal imprisonment, it introduced no new +principle, nor conferred any right upon the subject. From the earliest +records of the English law, no freeman could be detained in prison, +except upon a criminal charge or conviction, or for a civil debt. In +the former case, it was always in his power to demand of the court of +king's bench a writ of habeas corpus ad subjiciendum, directed to the +person detaining him in custody, by which he was enjoined to bring up +the body of the prisoner, with the warrant of commitment, that the +court might judge of its sufficiency, and remand the party, admit him +to bail, or discharge him, according to the nature of the charge. This +writ issued of right, and could not be refused by the court. It was +not to bestow an immunity from arbitrary imprisonment, which is +abundantly provided in Magna Charta (if indeed it were not much more +ancient), that the statute of Charles II. was enacted; but to cut off +the abuses, by which the government's lust of power, and the servile +subtlety of Crown lawyers, had impaired so fundamental a privilege. + +There had been some doubts whether the court of common pleas could +issue this writ; and the court of exchequer seems never to have done +so.[25] It was also a question, and one of more importance, as we have +seen in the case of Jenkes, whether a single judge of the court of +king's bench could issue it during the vacation. The statute therefore +enacts that where any person, other than persons convicted or in +execution upon legal process, stands committed for any crime, except +for treason or felony plainly expressed in the warrant of commitment, +he may during the vacation complain to the chancellor, or any of the +twelve judges; who upon sight of a copy of the warrant, or an +affidavit that a copy is denied, shall award a habeas corpus directed +to the officer in whose custody the party shall be, commanding him to +bring up the body of his prisoner within a time limited according to +the distance, but in no case exceeding twenty days, who shall +discharge the party from imprisonment, taking surety for his +appearance in the court wherein his offence is cognisable. A gaoler +refusing a copy of the warrant of commitment or not obeying the writ +is subjected to a penalty of L100; and even the judge denying a habeas +corpus, when required according to this act, is made liable to a +penalty of L500 at the suit of the injured party. The court of king's +bench had already been accustomed to send out their writ of habeas +corpus into all places of peculiar and privileged jurisdiction, where +this ordinary process does not run, and even to the island of Jersey, +beyond the strict limits of the kingdom of England;[26] and this +power, which might admit of some question, is sanctioned by a +declaratory clause of the present statute. Another section enacts, +that "no subject of this realm that now is, or hereafter shall be, an +inhabitant or resiant of this kingdom of England, dominion of Wales, +or town of Berwick-upon-Tweed, shall be sent prisoner into Scotland, +Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, +or places beyond the seas, which are, or at any time hereafter shall +be, within or without the dominions of his majesty, his heirs, or +successors," under penalties of the heaviest nature short of death +which the law then knew, and an incapacity of receiving the king's +pardon. The great rank of those who were likely to offend against this +part of the statute was, doubtless, the cause of this unusual +severity. + +But as it might still be practicable to evade these remedial +provisions by expressing some matter of treason or felony in the +warrant of commitment, the judges not being empowered to enquire into +the truth of the facts contained in it, a further security against any +protracted detention of an innocent man is afforded by a provision of +great importance; that every person committed for treason or felony, +plainly and specially expressed in the warrant, may, unless he shall +be indicted in the next term, or at the next sessions of general gaol +delivery after his commitment, be, on prayer to the court, released +upon bail, unless it shall appear that the Crown's witnesses could not +be produced at that time; and if he shall not be indicted and tried in +the second term or sessions of gaol delivery, he shall be discharged. + +The remedies of the habeas corpus act are so effectual that no man +can possibly endure any long imprisonment on a criminal charge, nor +would any minister venture to exercise a sort of oppression so +dangerous to himself. But it should be observed that, as the statute +is only applicable to cases of commitment on such a charge, every +other species of restraint on personal liberty is left to the ordinary +remedy, as it subsisted before this enactment. Thus a party detained +without any warrant must sue out his habeas corpus at common law; and +this is at present the more usual occurrence. But the judges of the +king's bench, since the statute, have been accustomed to issue this +writ during the vacation in all cases whatsoever. A sensible +difficulty has, however, been sometimes felt, from their incompetency +to judge of the truth of a return made to the writ. For, though in +cases within the statute the prisoner may always look to his legal +discharge at the next sessions of gaol delivery, the same redress +might not always be obtained when he is not in custody of a common +gaoler. If the person therefore who detains any one in custody should +think fit to make a return to the writ of habeas corpus, alleging +matter sufficient to justify the party's restraint, yet false in fact, +there would be no means, at least by this summary process, of +obtaining relief. An attempt was made in 1757, after an examination of +the judges by the House of Lords as to the extent and efficiency of +the habeas corpus at common law, to render their jurisdiction more +remedial.[27] It failed however, for the time, of success; but a +statute has recently been enacted,[28] which not only extends the +power of issuing the writ during the vacation, in cases not within the +act of Charles II., to all the judges, but enables the judge, before +whom the writ is returned, to enquire into the truth of the facts +alleged therein, and in case they shall seem to him doubtful, to +release the party in custody, on giving surety to appear in the court +to which such judge shall belong, on some day in the ensuing term, +when the court may examine by affidavit into the truth of the facts +alleged in the return, and either remand or discharge the party, +according to their discretion. It is also declared that a writ of +habeas corpus shall run to any harbour or road on the coast of +England, though out of the body of any county; in order, I presume, to +obviate doubts as to the effects of this remedy in a kind of illegal +detention, more likely perhaps than any other to occur in modern +times, on board of vessels upon the coast. Except a few of this +description, it is very rare for a habeas corpus to be required in any +case where the government can be presumed to have an interest. + +_Differences between lords and commons._--The reign of Charles II. was +hardly more remarkable by the vigilance of the House of Commons +against arbitrary prerogative than by the warfare it waged against +whatever seemed an encroachment or usurpation in the other house of +parliament. It has been a peculiar happiness of our constitution that +such dissensions have so rarely occurred. I cannot recollect any +republican government, ancient or modern (except perhaps some of the +Dutch provinces), where hereditary and democratical authority have +been amalgamated so as to preserve both in effect and influence, +without continual dissatisfaction and reciprocal encroachments; for +though, in the most tranquil and prosperous season of the Roman state, +one consul, and some magistrates of less importance, were invariably +elected from the patrician families, these latter did not form a +corporation, nor had any collective authority in the government. The +history of monarchies, including of course all states where the +principality is lodged in a single person, that have admitted the +aristocratical and popular temperaments at the same time, bears +frequent witness to the same jealous or usurping spirit. Yet monarchy +is unquestionably more favourable to the co-existence of an hereditary +body of nobles with a representation of the commons than any other +form of commonwealth; and it is to the high prerogative of the English +Crown, its exclusive disposal of offices of trust which are the +ordinary subjects of contention, its power of putting a stop to +parliamentary disputes by a dissolution, and, above all, to the +necessity which both the Peers and the Commons have often felt, of a +mutual good understanding for the maintenance of their privileges, +that we must in a great measure attribute the general harmony, or at +least the absence of open schism, between the two houses of +parliament. This is, however, still more owing to the happy graduation +of ranks, which renders the elder and the younger sons of our nobility +two links in the unsevered chain of society; the one trained in the +school of popular rights, and accustomed, for a long portion of their +lives, to regard the privileges of the house whereof they form a part, +full as much as those of their ancestors;[29] the other falling +without hereditary distinction into the class of other commoners, and +mingling the sentiments natural to their birth and family affection, +with those that are more congenial to the whole community. It is owing +also to the wealth and dignity of those ancient families, who would be +styled noble in any other country, and who give an aristocratical +character to the popular part of our legislature, and to the influence +which the peers themselves, through the representation of small +boroughs, are enabled to exercise over the lower house. + +_Judicial powers of the lords historically traced._--The original +constitution of England was highly aristocratical. The peers of this +realm, when summoned to parliament (and on such occasions every peer +was entitled to his writ), were the necessary counsellors and +coadjutors of the king in all the functions that appertain to a +government. In granting money for the public service, in changing by +permanent statutes the course of the common law, they could only act +in conjunction with the knights, citizens, and burgesses of the lower +house of parliament. In redress of grievances, whether of so private a +nature as to affect only single persons or extending to a county or +hundred, whether proceeding from the injustice of public officers or +of powerful individuals, whether demanding punishment as crimes +against the state, or merely restitution and damages to the injured +party, the Lords assembled in parliament were competent, as we find in +our records, to exercise the same high powers, if they were not even +more extensive and remedial, as the king's ordinary council, composed +of his great officers, his judges, and perhaps some peers, was wont to +do in the intervals of parliament. These two, the Lords and the privy +council, seem to have formed, in the session, one body or great +council, wherein the latter had originally right of suffrage along +with the former. In this judicial and executive authority, the Commons +had at no time any more pretence to interfere than the council, or +the Lords by themselves, had to make ordinances, at least of a general +and permanent nature, which should bind the subject to obedience. At +the beginning of every parliament numerous petitions were presented to +the Lords, or to the king and Lords (since he was frequently there in +person, and always presumed to be so), complaining of civil injuries +and abuse of power. These were generally indorsed by appointed +receivers of petitions, and returned by them to the proper court +whence relief was to be sought.[30] For an immediate inquiry and +remedy seem to have been rarely granted, except in cases of an +extraordinary nature, when the law was defective, or could not easily +be enforced by the ordinary tribunals; the shortness of sessions, and +multiplicity of affairs, preventing the upper house of parliament from +entering so fully into these matters as the king's council had leisure +to do. + +It might perhaps be well questioned, notwithstanding the considerable +opinion of Sir M. Hale, whether the statutes directed against the +prosecution of civil and criminal suits before the council are so +worded as to exclude the original jurisdiction of the House of Lords, +though their principle is very adverse to it. But it is remarkable +that, so far as the Lords themselves could allege from the rolls of +parliament, one only instance occurs between 4 Hen. IV. (1403) and 43 +Eliz. (1602) where their house had entered upon any petition in the +nature of an original suit; though in that (1 Ed. IV. 1461) they had +certainly taken on them to determine a question cognisable in the +common courts of justice. For a distinction seems to have been +generally made between cases where relief might be had in the courts +below, as to which it is contended by Sir M. Hale that the Lords could +not have jurisdiction, and those where the injured party was without +remedy, either through defect of the law, or such excessive power of +the aggressor as could defy the ordinary process. During the latter +part at least of this long interval, the council and court of +star-chamber were in all their vigour, to which the intermission of +parliamentary judicature may in a great measure be ascribed. It was +owing also to the longer intervals between parliaments from the time +of Henry VI., extending sometimes to five or six years, which rendered +the redress of private wrongs by their means inconvenient and +uncertain. In 1621 and 1624, the Lords, grown bold by the general +disposition in favour of parliamentary rights, made orders without +hesitation on private petitions of an original nature. They continued +to exercise this jurisdiction in the first parliaments of Charles I.; +and in one instance, that of a riot at Banbury, even assumed the power +of punishing a misdemeanour unconnected with privilege. In the long +parliament, it may be supposed that they did not abandon this +encroachment, as it seems to have been, on the royal authority, +extending their orders both to the punishment of misdemeanours and to +the awarding of damages.[31] + +The ultimate jurisdiction of the House of Lords, either by removing +into it causes commenced in the lower courts, or by writ of error +complaining of a judgment given therein, seems to have been as +ancient, and founded on the same principle of a paramount judicial +authority delegated by the Crown, as that which they exercised upon +original petitions. It is to be observed that the council or +star-chamber did not pretend to any direct jurisdiction of this +nature; no record was ever removed thither upon assignment of errors +in an inferior court. But after the first part of the fifteenth +century, there was a considerable interval, during which this +appellant jurisdiction of the Lords seems to have gone into disuse, +though probably known to be legal.[32] They began again, about 1580, +to receive writs of error from the court of king's bench; though for +forty years more the instances were by no means numerous. But the +statute passed in 1585, constituting the court of exchequer-chamber as +an intermediate tribunal of appeal between the king's bench and the +parliament, recognises the jurisdiction of the latter, that is, of the +House of Lords, in the strongest terms.[33] To this power, therefore, +of determining, in the last resort, upon writs of error from the +courts of common law, no objection could possibly be maintained. + +_Their pretensions about the time of the restoration._--The +revolutionary spirit of the long parliament brought forward still +higher pretensions, and obscured all the land-marks of constitutional +privilege. As the Commons took on themselves to direct the execution +of their own orders, the Lords, afraid to be jostled out of that +equality to which they were now content to be reduced, asserted a +similar claim at the expense of the king's prerogative. They returned +to their own house on the restoration with confused notions of their +high jurisdiction, rather enhanced than abated by the humiliation they +had undergone. Thus before the king's arrival, the Commons having sent +up for their concurrence a resolution that the persons and estates of +the regicides should be seized, the upper house deemed it an +encroachment on their exclusive judicature, and changed the resolution +into "an order of the Lords on complaint of the Commons."[34] In a +conference on this subject between the two houses, the Commons denied +their lordships to possess an exclusive jurisdiction, but did not +press that matter.[35] But in fact this order was rather of a +legislative than judicial nature; nor could the Lords pretend to any +jurisdiction in cases of treason. They artfully, however, overlooked +these distinctions; and made orders almost daily in the session of +1660, trenching on the executive power and that of the inferior +courts. Not content with ordering the estates of all peers to be +restored, free from seizure by sequestration, and with all arrears of +rent, we find in their journals that they did not hesitate on petition +to stay waste on the estates of private persons, and to secure the +tithes of livings, from which ministers had been ejected, in the hands +of the churchwardens till their title could be tried.[36] They acted, +in short, as if they had a plenary authority in matters of freehold +right, where any member of their own house was a party, and in every +case as full an equitable jurisdiction as the court of chancery. +Though in the more settled state of things which ensued, these +anomalous orders do not so frequently occur, we find several +assumptions of power which show a disposition to claim as much as the +circumstances of any particular case should lead them to think +expedient for the parties, or honourable to themselves.[37] + +_Resistance made by the commons._--The lower house of parliament, +which hardly reckoned itself lower in dignity, and was something more +than equal in substantial power, did not look without jealousy on +these pretensions. They demurred to a privilege asserted by the Lords +of assessing themselves in bills of direct taxation; and, having on +one occasion reluctantly permitted an amendment of that nature to +pass, took care to record their dissent from the principle by a +special entry in the journal.[38] An amendment having been introduced +into a bill for regulating the press, sent up by the Commons in the +session of 1661, which exempted the houses of peers from search for +unlicensed books, it was resolved not to agree to it; and the bill +dropped for that time.[39] Even in far more urgent circumstances, +while the parliament sat at Oxford in the year of the plague, a bill +to prevent the progress of infection was lost, because the lords +insisted that their houses should not be subjected to the general +provisions for security.[40] These ill-judged demonstrations of a +design to exempt themselves from that equal submission to the law, +which is required in all well-governed states, and had ever been +remarkable in our constitution, naturally raised a prejudice against +the Lords, both in the other house of parliament, and among the common +lawyers. + +This half-suppressed jealousy soon disclosed itself in the famous +controversy between the two houses about the case of Skinner and the +East India Company. This began by a petition of the former to the +king, wherein he complained, that having gone as a merchant to the +Indian seas, at a time when there was no restriction upon that trade, +the East India Company's agents had plundered his property, taken away +his ships, and dispossessed him of an island which he had purchased +from a native prince. Conceiving that he could have no sufficient +redress in the ordinary courts of justice, he besought his sovereign +to enforce reparation by some other means. After several ineffectual +attempts by a committee of the privy council to bring about a +compromise between the parties, the king transmitted the documents to +the House of Lords, with a recommendation to do justice to the +petitioner. They proceeded accordingly to call on the East India +Company for an answer to Skinner's allegations. The company gave in +what is technically called a plea to the jurisdiction, which the house +over-ruled. The defendants then pleaded in bar, and contrived to delay +the enquiry into the facts till the next session; when the proceedings +having been renewed, and the plea to the Lords' jurisdiction again +offered, and over-ruled, judgment was finally given that the East +India Company should pay L5000 damages to Skinner. + +Meantime the company had presented a petition to the House of Commons +against the proceedings of the Lords in this business. It was referred +to a committee, who had already been appointed to consider some other +cases of a like nature. They made a report, which produced resolutions +to this effect; that the Lords, in taking cognisance of an original +complaint, and that relievable in the ordinary course of law, had +acted illegally, and in a manner to deprive the subject of benefit of +the law. The Lords in return voted, "that the House of Commons +entertaining the scandalous petition of the East India Company against +the Lords' house of parliament, and their proceedings, examinations, +and votes thereupon had and made, are a breach of the privileges of +the House of Peers, and contrary to the fair correspondency which +ought to be between the two houses of parliament, and unexampled in +former times; and that the House of Peers, taking cognisance of the +cause of Thomas Skinner, merchant, a person highly oppressed and +injured in East India by the governor and company of merchants trading +thither, and over-ruling the plea of the said company, and adjudging +L5000 damages thereupon against the said governor and company, is +agreeable to the laws of the land, and well warranted by the law and +custom of parliament, and justified by many parliamentary precedents +ancient and modern." + +Two conferences between the houses, according to the usage of +parliament, ensued, in order to reconcile this dispute. But it was too +material in itself, and aggravated by too much previous jealousy, for +any voluntary compromise. The precedents alleged to prove an original +jurisdiction in the peers were so thinly scattered over the records of +centuries, and so contrary to the received principle of our +constitution that questions of fact are cognisable only by a jury, +that their managers in the conferences seemed less to insist on the +general right, than on a supposed inability of the courts of law to +give adequate redress to the present plaintiff; for which the judges +had furnished some pretext on a reference as to their own competence +to afford relief, by an answer more narrow, no doubt, than would have +been rendered at the present day. And there was really more to be +said, both in reason and law, for this limited right of judicature +than for the absolute cognisance of civil suits by the Lords. But the +Commons were not inclined to allow even of such a special exception +from the principle for which they contended, and intimated that the +power of affording a remedy in a defect of the ordinary tribunals +could only reside in the whole body of the parliament. + +The proceedings that followed were intemperate on both sides. The +Commons voted Skinner into custody for a breach of privilege, and +resolved that whoever should be aiding in execution of the order of +the Lords against the East India Company should be deemed a betrayer +of the liberties of the commons of England, and an infringer of the +privileges of the house. The Lords, in return, committed Sir Samuel +Barnardiston, chairman of the company, and a member of the House of +Commons, to prison, and imposed on him a fine of L500. It became +necessary for the king to stop the course of this quarrel, which was +done by successive adjournments and prorogations for fifteen months. +But on their meeting again in October 1669, the Commons proceeded +instantly to renew the dispute. It appeared that Barnardiston, on the +day of the adjournment, had been released from custody, without demand +of his fine, which by a trick rather unworthy of those who had +resorted to it, was entered as paid on the records of the exchequer. +This was a kind of victory on the side of the Commons; but it was +still more material that no steps had been taken to enforce the order +of the Lords against the East India Company. The latter sent down a +bill concerning privilege and judicature in parliament, which the +other house rejected on a second reading. They in return passed a bill +vacating the proceedings against Barnardiston, which met with a like +fate. In conclusion, the king recommended an erasure from the journals +of all that had passed on the subject, and an entire cessation; an +expedient which both houses willingly embraced, the one to secure its +victory, the other to save its honour. From this time the Lords have +tacitly abandoned all pretensions to an original jurisdiction in civil +suits.[41] + +They have however been more successful in establishing a branch of +their ultimate jurisdiction, which had less to be urged for it in +respect of precedent, that of hearing appeals from courts of equity. +It is proved by Sir Matthew Hale and his editor, Mr. Hargrave, that +the Lords did not entertain petitions of appeal before the reign of +Charles I., and not perhaps unequivocally before the long +parliament.[42] They became very common from that time, though hardly +more so than original suits; and as they bore no analogy, except at +first glance, to writs of error, which come to the House of Lords by +the king's express commission under the great seal, could not well be +defended on legal grounds. But on the other hand, it was reasonable +that the vast power of the court of chancery should be subject to some +control; and though a commission of review, somewhat in the nature of +the court of delegates in ecclesiastical appeals, might have been and +had been occasionally ordered by the Crown;[43] yet if the ultimate +jurisdiction of the peerage were convenient and salutary in cases of +common law, it was difficult to assign any satisfactory reason why it +should be less so in those which are technically denominated +equitable.[44] Nor is it likely that the Commons would have disputed +this usurpation, in which the Crown had acquiesced, if the Lords had +not received appeals against members of the other house. Three +instances of this took place about the year 1675; but that of Shirley +against Sir John Fagg is the most celebrated, as having given rise to +a conflict between the two houses, as violent as that which had +occurred in the business of Skinner. It began altogether on the score +of privilege. As members of the House of Commons were exempted from +legal process during the session, by the general privilege of +parliament, they justly resented the pretension of the peers to +disregard this immunity, and compel them to appear as respondents in +cases of appeal. In these contentions neither party could evince its +superiority but at the expense of innocent persons. It was a contempt +of the one house to disobey its order, of the other to obey it. Four +counsel, who had pleaded at the bar of the Lords in one of the cases +where a member of the other house was concerned, were taken into +custody of the serjeant-at-arms by the speaker's warrant. The +gentleman usher of the black rod, by warrant of the Lords, empowering +him to call all persons necessary to his assistance, set them at +liberty. The Commons apprehended them again; and to prevent another +rescue, sent them to the Tower. The Lords despatched their usher of +the black rod to the lieutenant of the Tower, commanding him to +deliver up the said persons. He replied that they were committed by +order of the Commons, and he could not release them without their +order; just as, if the Lords were to commit any persons, he could not +release them without their Lordships' order. They addressed the king +to remove the lieutenant; but after some hesitation, he declined to +comply with their desire. In this difficulty, they had recourse, +instead of the warrant of the Lords' speaker, to a writ of habeas +corpus returnable in parliament; a proceeding not usual, but the +legality of which seems to be now admitted. The lieutenant of the +Tower, who, rather unluckily for the Lords, had taken the other side, +either out of conviction, or from a sense that the lower house were +the stronger and more formidable, instead of obeying the writ, came to +the bar of the Commons for directions. They voted, as might be +expected, that the writ was contrary to law and the privileges of +their house. But in this ferment of two jealous and exasperated +assemblies, it was highly necessary, as on the former occasion, for +the king to interpose by a prorogation for three months. This period, +however, not being sufficient to allay their animosity, the House of +Peers took up again the appeal of Shirley in their next session. Fresh +votes and orders of equal intemperance on both sides ensued, till the +king by the long prorogation, from November 1675 to February 1677, put +an end the dispute. The particular appeal of Shirley was never +revived; but the Lords continued without objection to exercise their +general jurisdiction over appeals from courts of equity.[45] The +learned editor of Hale's Treatise on the Jurisdiction of the Lords +expresses some degree of surprise at the Commons' acquiescence in what +they had treated as an usurpation. But it is evident from the whole +course of proceeding that it was the breach of privilege in citing +their own members to appear, which excited their indignation. It was +but incidentally that they observed in a conference, "that the Commons +cannot find, by Magna Charta, or by any other law or ancient custom of +parliament, that your lordships have any jurisdiction in cases of +appeal from courts of equity." They afterwards, indeed, resolved that +there lies no appeal to the judicature of the Lords in parliament from +courts of equity;[46] and came ultimately, as their wrath increased, +to a vote "that whosoever shall solicit, plead, or prosecute any +appeal against any commoner of England, from any court of equity, +before the House of Lords, shall be deemed and taken a betrayer of the +rights and liberties of the commons of England, and shall be proceeded +against accordingly;"[47] which vote the Lords resolved next day to be +"illegal, unparliamentary, and tending to a dissolution of the +government."[48] But this was evidently rather an act of hostility +arising out of the immediate quarrel than the calm assertion of a +legal principle.[49] + +_Question of the exclusive right of the commons as to +money-bills._--During the interval between these two dissensions, +which the suits of Skinner and Shirley engendered, another difference +had arisen, somewhat less violently conducted, but wherein both houses +considered their essential privileges at stake. This concerned the +long agitated question of the right of the Lords to make alterations +in money-bills. Though I cannot but think the importance of their +exclusive privilege has been rather exaggerated by the House of +Commons, it deserves attention; more especially as the embers of that +fire may not be so wholly extinguished as never again to show some +traces of its heat. + +In our earliest parliamentary records, the Lords and Commons, summoned +in a great measure for the sake of relieving the king's necessities, +appear to have made their several grants of supply without mutual +communication, and the latter generally in a higher proportion than +the former. These were not in the form of laws, nor did they obtain +any formal assent from the king, to whom they were tendered in written +indentures, entered afterwards on the roll of parliament. The latest +instance of such distinct grants from the two houses, as far as I can +judge from the rolls, is in the 18th year of Edward III.[50] But in +the 22nd year of that reign the Commons alone granted three fifteenths +of their goods, in such a manner as to show beyond a doubt that the +tax was to be levied solely upon themselves.[51] After this time, the +Lords and Commons are jointly recited in the rolls to have granted +them, sometimes, as it is expressed, upon deliberation had together. +In one case it is said that the Lords, with one assent, and afterwards +the Commons, granted a subsidy on exported wool.[52] A change of +language is observable in Richard II.'s reign, when the Commons are +recited to grant with the assent of the Lords; and this seems to +indicate, not only that in practice the vote used to originate with +the Commons, but that their proportion, at least, of the tax being far +greater than that of the Lords (especially in the usual impositions on +wool and skins, which ostensibly fell on the exporting merchant), the +grant was to be deemed mainly theirs, subject only to the assent of +the other house of parliament. This is, however, so explicitly +asserted in a remarkable passage on the roll of 9 Hen. IV., without +any apparent denial, that it cannot be called in question by any +one.[53] The language of the rolls continues to be the same in the +following reigns; the Commons are the granting, the Lords the +consenting power. It is even said by the court of king's bench, in a +year-book of Edward IV., that a grant of money by the Commons would be +binding without assent of the Lords; meaning of course as to commoners +only, though the position seems a little questionable even with the +limitation. I have been almost led to suspect, by considering this +remarkable exclusive privilege of originating grants of money to the +Crown, as well as by the language of some passages in the rolls of +parliament relating to them, that no part of the direct taxes, the +tenths or fifteenths of goods, were assessed upon the Lords temporal +and spiritual, except where they are positively mentioned, which is +frequently the case. But as I do not remember to have seen this +anywhere asserted by those who have turned their attention to the +antiquities of our constitution, it may possibly be an unfounded +surmise, or at least only applicable to the earlier period of our +parliamentary records. + +These grants continued to be made as before, by the consent indeed of +the houses of parliament, but not as legislative enactments. Most of +the few instances where they appear among the statutes are where some +condition is annexed, or some relief of grievances so interwoven with +them that they make part of a new law.[54] In the reign of Henry VII. +they are occasionally inserted among the statutes, though still +without any enacting words.[55] In that of Henry VIII. the form is +rather more legislative, and they are said to be enacted by the +authority of parliament, though the king's name is not often mentioned +till about the conclusion of his reign;[56] after which a sense of the +necessity of expressing his legislative authority seems to have led to +its introduction in some part or other of the bill.[57] The Lords and +Commons are sometimes both said to grant, but more frequently the +latter with the former's assent, as continued to be the case through +the reigns of Elizabeth and James I. In the first parliament of +Charles I., the Commons began to omit the name of the Lords in the +preamble of bills of supply, reciting the grant as if wholly their +own, but in the enacting words adopted the customary form of statutes. +This, though once remonstrated against by the upper house, has +continued ever since to be the practice. + +The originating power as to taxation was thus indubitably placed in +the House of Commons; nor did any controversy arise upon that ground. +But they maintained also that the Lords could not make any amendment +whatever in bills sent up to them for imposing, directly or +indirectly, a charge upon the people. There seems no proof that any +difference between the two houses on this score had arisen before the +restoration; and in the convention parliament the Lords made several +alterations in undoubted money-bills, to which the Commons did not +object. But in 1661, the Lords having sent down a bill for paving the +streets of Westminster, to which they desired the concurrence of the +Commons, the latter, on reading the bill a first time, "observing that +it went to lay a charge upon the people, and conceiving that it was a +privilege inherent in their house that bills of that nature should be +first considered there," laid it aside, and caused another to be +brought in.[58] When this was sent up to the Lords, they inserted a +clause, to which the Commons disagreed, as contrary to their +privileges, because the people cannot have any tax or charge imposed +upon them, but originally by the House of Commons. The Lords resolved +this assertion of the Commons to be against the inherent privileges of +the House of Peers; and mentioned one precedent of a similar bill in +the reign of Mary, and two in that of Elizabeth, which had begun with +them. The present bill was defeated by the unwillingness of either +party to recede; but for a few years after, though the point in +question was still agitated, instances occur where the Commons +suffered amendments in what were now considered as money-bills to +pass, and others where the Lords receded from them rather than defeat +the proposed measure. In April 1671, however, the Lords having reduced +the amount of an imposition on sugar, it was resolved by the other +house, "That in all aids given to the king by the Commons, the rate or +tax ought not to be altered by the Lords."[59] This brought on several +conferences between the houses, wherein the limits of the exclusive +privilege claimed by the Commons were discussed with considerable +ability, and less heat than in the disputes concerning judicature; +but, as I cannot help thinking, with a decided advantage both as to +precedent and constitutional analogy on the side of the peers.[60] If +the Commons, as in early times, had merely granted their own money, it +would be reasonable that their house should have, as it claimed to +have, "a fundamental right as to the matter, the measure, and the +time." But that the peers, subject to the same burthens as the rest of +the community, and possessing no trifling proportion of the general +wealth, should have no other alternative than to refuse the necessary +supplies of the revenue, or to have their exact proportion, with all +qualifications and circumstances attending their grant, presented to +them unalterably by the other house of parliament, was an anomaly that +could hardly rest on any other ground of defence than such a series of +precedents as establish a constitutional usage; while, in fact, it +could not be made out that such a pretension was ever advanced by the +Commons before the present parliament. In the short parliament of +April 1640, the Lords having sent down a message, requesting the other +house to give precedency in the business they were about to matter of +supply, it had been highly resented, as an infringement of their +privilege; and Mr. Pym was appointed to represent their complaint at a +conference. Yet even then, in the fervour of that critical period, the +boldest advocate of popular privileges who could have been selected +was content to assert that the matter of subsidy and supply ought to +begin in the House of Commons.[61] + +There seems to be still less pretext for the great extension given by +the Commons to their acknowledged privilege of originating bills of +supply. The principle was well adapted to that earlier period when +security against misgovernment could only be obtained by the vigilant +jealousy and uncompromising firmness of the Commons. They came to the +grant of subsidy with real or feigned reluctance, as the stipulated +price of redress of grievances. They considered the Lords, generally +speaking, as too intimately united with the king's ordinary council, +which indeed sat with them, and had perhaps, as late as Edward III.'s +time, a deliberative voice. They knew the influence or intimidating +ascendency of the peers over many of their own members. It may be +doubted in fact whether the lower house shook off, absolutely and +permanently, all sense of subordination, or at least deference, to the +upper, till about the close of the reign of Elizabeth. But I must +confess that, in applying the wise and ancient maxim, that the Commons +alone can empower the king to levy the people's money, to a private +bill for lighting and cleansing a certain town, or cutting dikes in a +fen, to local and limited assessments for local benefit (as to which +the Crown has no manner of interest, nor has anything to do with the +collection), there was more disposition shown to make encroachments +than to guard against those of others. They began soon after the +revolution to introduce a still more extraordinary construction of +their privilege, not receiving from the House of Lords any bill which +imposes a pecuniary penalty on offenders, nor permitting them to alter +the application of such as have been imposed below.[62] + +These restrictions upon the other house of parliament, however, are +now become, in their own estimation, the standing privileges of the +Commons. Several instances have occurred during the last century, +though not, I believe, very lately, when bills, chiefly of a private +nature, have been unanimously rejected, and even thrown over the table +by the speaker, because they contained some provision in which the +Lords had trespassed upon these alleged rights.[63] They are, as may +be supposed, very differently regarded in the neighbouring chamber. +The Lords have never acknowledged any further privilege than that of +originating bills of supply. But the good sense of both parties, and +of an enlightened nation, who must witness and judge of their +disputes, as well as the natural desire of the government to prevent +in the outset any altercation that must impede the course of its +measures, have rendered this little jealousy unproductive of those +animosities which it seemed so happily contrived to excite. The one +house, without admitting the alleged privilege, has generally been +cautious not to give a pretext for eagerly asserting it; and the +other, on the trifling occasions where it has seemed, perhaps +unintentionally, to be infringed, has commonly resorted to the +moderate course of passing a fresh bill to the same effect, after +satisfying its dignity by rejecting the first. + +_State of the upper house under the Tudors and Stuarts._--It may not +be improper to choose the present occasion for a summary view of the +constitution of both houses of parliament under the lines of Tudor and +Stuart. Of their earlier history the reader may find a brief, and not, +I believe, very incorrect account in a work to which this is a kind of +sequel. + +_Augmentation of the temporal lords._--The number of temporal lords +summoned by writ to the parliaments of the house of Plantagenet was +exceedingly various; nor was anything more common in the fourteenth +century than to omit those who had previously sat in person, and still +more their descendants. They were rather less numerous for this +reason, under the line of Lancaster, when the practice of summoning +those who were not hereditary peers did not so much prevail as in the +preceding reigns. Fifty-three names however appear in the parliament +of 1454, the last held before the commencement of the great contest +between York and Lancaster. In this troublous period of above thirty +years, if the whole reign of Edward IV. is to be included, the chiefs +of many powerful families lost their lives in the field or on the +scaffold, and their honours perished with them by attainder. New +families, adherents of the victorious party, rose in their place; and +sometimes an attainder was reversed by favour; so that the peers of +Edward's reign were not much fewer than the number I have mentioned. +Henry VII. summoned but twenty-nine to his first parliament, including +some whose attainder had never been judicially reversed; a plain act +of violence, like his previous usurpation of the Crown. In his +subsequent parliaments the peerage was increased by fresh creations, +but never much exceeded forty. The greatest number summoned by Henry +VIII. was fifty-one; which continued to be nearly the average in the +two next reigns, and was very little augmented by Elizabeth. James, +in his thoughtless profusion of favour, made so many new creations, +that eighty-two peers sat in his first parliament, and ninety-six in +his latest. From a similar facility in granting so cheap a reward of +service, and in some measure perhaps from the policy of counteracting +a spirit of opposition to the court, which many of the Lords had begun +to manifest, Charles called no less than one hundred and seventeen +peers to the parliament of 1628, and one hundred and nineteen to that +of November 1640. Many of these honours were sold by both these +princes; a disgraceful and dangerous practice, unheard of in earlier +times, by which the princely peerage of England might have been +gradually levelled with the herd of foreign nobility. This has +occasionally, though rarely, been suspected since the restoration. In +the parliament of 1661, we find one hundred and thirty-nine lords +summoned. + +The spiritual lords, who, though forming another estate in parliament, +have always been so united with the temporality that the suffrages of +both upon every question are told indistinctly and numerically, +composed in general, before the reformation, a majority of the upper +house; though there was far more irregularity in the summonses of the +mitred abbots and priors than those of the barons. But by the +surrender and dissolution of the monasteries, about thirty-six votes +of the clergy on an average were withdrawn from the parliament; a loss +ill compensated to them by the creation of five new bishoprics. Thus, +the number of the temporal peers being continually augmented, while +that of the prelates was confined to twenty-six, the direct influence +of the church on the legislature has become comparatively small; and +that of the Crown, which, by the pernicious system of translations and +other means, is generally powerful with the episcopal bench, has, in +this respect at least, undergone some diminution. It is easy to +perceive from this view of the case that the destruction of the +monasteries, as they then stood, was looked upon as an indispensable +preliminary to the reformation; no peaceable efforts towards which +could have been effectual without altering the relative proportions of +the spiritual and temporal aristocracy. + +The House of Lords, during this period of the sixteenth and +seventeenth centuries, were not supine in rendering their collective +and individual rights independent of the Crown. It became a +fundamental principle, according indeed to ancient authority, though +not strictly observed in ruder times, that every peer of full age is +entitled to his writ of summons at the beginning of a parliament, and +that the house will not proceed on business, if any one is denied +it.[64] The privilege of voting by proxy, which was originally by +special permission of the king, became absolute, though subject to +such limitations as the house itself may impose. The writ of summons, +which, as I have observed, had in earlier ages (if usage is to +determine that which can rest on nothing but usage) given only a right +of sitting in the parliament for which it issued, was held, about the +end of Elizabeth's reign, by a construction founded on later usage, to +convey an inheritable peerage, which was afterwards adjudged to +descend upon heirs general, female as well as male; an extension which +sometimes raises intricate questions of descent, and though no +materially bad consequences have flowed from it, is perhaps one of the +blemishes in the constitution of parliament. Doubts whether a peerage +could be surrendered to the king, and whether a territorial honour, of +which hardly any remain, could be alienated along with the land on +which it depended, were determined in the manner most favourable to +the dignity of the aristocracy. They obtained also an important +privilege; first of recording their dissent in the journals of the +house, and afterwards of inserting the grounds of it. Instances of the +former occur not unfrequently at the period of the reformation; but +the latter practice was little known before the long parliament. A +right that Cato or Phocion would have prized, though it may sometimes +have been frivolously or factiously exercised! + +_State of the commons._--The House of Commons, from the earliest +records of its regular existence in the 23rd year of Edward I., +consisted of seventy-four knights, or representatives from all the +counties of England, except Chester, Durham, and Monmouth, and of a +varying number of deputies from the cities and boroughs; sometimes in +the earliest period of representation amounting to as many as two +hundred and sixty; sometimes, by the negligence or partiality of the +sheriffs in omitting places that had formerly returned members, to not +more than two-thirds of that number. New boroughs, however, as being +grown into importance, or from some private motive, acquired the +franchise of election; and at the accession of Henry VIII. we find +two hundred and twenty-four citizens and burgesses from one hundred +and eleven towns (London sending four), none of which have since +intermitted their privilege. + +_Question as to rights of election._--I must so far concur with those +whose general principles as to the theory of parliamentary reform +leave me far behind, as to profess my opinion that the change, which +appears to have taken place in the English government towards the end +of the thirteenth century, was founded upon the maxim that all who +possessed landed or movable property ought, as freemen, to be bound by +no laws, and especially by no taxation, to which they had not +consented through their representatives. If we look at the +constituents of a House of Commons under Edward I. or Edward III., and +consider the state of landed tenures and of commerce at that period, +we shall perceive that, excepting women, who have generally been +supposed capable of no political right but that of reigning, almost +every one who contributed towards the tenths and fifteenths granted by +the parliament, might have exercised the franchise of voting for those +who sat in it. Were we even to admit, that in corporate boroughs the +franchise may have been usually vested in the freemen rather than the +inhabitants, yet this distinction, so important in later ages, was of +little consequence at a time when all traders, that is all who +possessed any movable property worth assessing, belonged to the former +class. I do not pretend that no one was contributory to a subsidy, who +did not possess a vote; but that the far greater portion was levied on +those who, as freeholders or burgesses, were reckoned in law to have +been consenting to its imposition. It would be difficult probably to +name any town of the least consideration in the fourteenth and +fifteenth centuries, which did not, at some time or other, return +members to parliament. This is so much the case that if, in running +our eyes along the map, we find any sea-port, as Sunderland or +Falmouth, or any inland town, as Leeds or Birmingham, which has never +enjoyed the elective franchise, we may conclude at once that it has +emerged from obscurity since the reign of Henry VIII.[65] + +Though scarce any considerable town, probably, was intentionally left +out, except by the sheriffs' partiality, it is not to be supposed that +all boroughs that made returns were considerable. Several that are +currently said to be decayed, were never much better than at present. +Some of these were the ancient demesne of the Crown; the tenants of +which not being suitors to the county courts, nor voting in the +election of knights for the shire, were, still on the same principle +of consent to public burthens, called upon to send their own +representatives. Others received the privilege along with their +charter of incorporation, in the hope that they would thrive more than +proved to be the event; and possibly, even in such early times, the +idea of obtaining influence in the Commons through the votes of their +burgesses might sometimes suggest itself. + +That, amidst all this care to secure the positive right of +representation, so little provision should have been made as to its +relative efficiency, that the high-born and opulent gentry should have +been so vastly outnumbered by peddling traders, that the same number +of two should have been deemed sufficient for the counties of York and +Rutland, for Bristol and Gatton, are facts more easy to wonder at than +to explain; for, though the total ignorance of the government as to +the relative population might be perhaps a sufficient reason for not +making an attempt at equalisation, yet if the representation had been +founded on anything like a numerical principle, there would have been +no difficulty in reducing it to the proportion furnished by the books +of subsidy for each county and borough, or at least in a rude +approximation towards a more rational distribution. + +Henry VIII. gave a remarkable proof that no part of the kingdom, +subject to the English laws and parliamentary burthens, ought to want +its representation, by extending the right of election to the whole of +Wales, the counties of Chester and Monmouth, and even the towns of +Berwick and Calais. It might be possible to trace the reason, why the +county of Durham was passed over. The attachment of those northern +parts to popery seems as likely as any other. Thirty-three were thus +added to the Commons. Edward VI. created fourteen boroughs, and +restored ten that had disused their privilege. Mary added twenty-one, +Elizabeth sixty, and James twenty-seven members.[66] + +These accessions to the popular chamber of parliament after the reign +of Henry VIII. were by no means derived from a popular principle, such +as had influenced its earlier constitution. We may account perhaps on +this ground for the writs addressed to a very few towns, such as +Westminster. But the design of that great influx of new members from +petty boroughs, which began in the short reigns of Edward and Mary, +and continued under Elizabeth, must have been to secure the authority +of government, especially in the successive revolutions of religion. +Five towns only in Cornwall made returns at the accession of Edward +VI.; twenty-one at the death of Elizabeth. It will not be pretended +that the wretched villages, which corruption and perjury still hardly +keep from famine, were seats of commerce and industry in the sixteenth +century. But the county of Cornwall was more immediately subject to a +coercive influence, through the indefinite and oppressive jurisdiction +of the stannary court. Similar motives, if we could discover the +secrets of those governments, doubtless operated in most other cases. +A slight difficulty seems to have been raised in 1563 about the +introduction of representatives from eight new boroughs at once by +charters from the Crown, but was soon waived with the complaisance +usual in those times. Many of the towns, which had abandoned their +privilege at a time when they were compelled to the payment of daily +wages to their members during the session, were now desirous of +recovering it, when that burthen had ceased and the franchise had +become valuable. And the house, out of favour to popular rights, laid +it down in the reign of James I. as a principle, that every town, +which has at any time returned members to parliament, is entitled to a +writ as a matter of course. The speaker accordingly issued writs to +Hertford, Pomfret, Ilchester, and some other places, on their +petition. The restorations of boroughs in this manner, down to 1641, +are fifteen in number. But though the doctrine that an elective right +cannot be lost by disuse, is still current in parliament, none of the +very numerous boroughs which have ceased to enjoy that franchise since +the days of the three first Edwards, have from the restoration downwards +made any attempt at retrieving it; nor is it by any means likely that +they would be successful in the application. Charles I., whose temper +inspired him rather with a systematic abhorrence of parliaments than +with any notion of managing them by influence, created no new +boroughs. The right indeed would certainly have been disputed, however +frequently exercised. In 1673 the county and city of Durham, which had +strangely been unrepresented to so late an aera, were raised by act of +parliament to the privileges of their fellow-subjects.[67] About the +same time a charter was granted to the town of Newark, enabling it to +return two burgesses. It passed with some little objection at the +time; but four years afterwards, after two debates, it was carried on +the question, by 125 to 73, that by virtue of the charter granted to +the town of Newark, it hath right to send burgesses to serve in +parliament.[68] Notwithstanding this apparent recognition of the +king's prerogative to summon burgesses from a town not previously +represented, no later instance of its exercise has occurred; and it +would unquestionably have been resisted by the Commons, not, as is +vulgarly supposed, because the act of union with Scotland has limited +the English members to 513 (which is not the case), but upon the broad +maxims of exclusive privilege in matters relating to their own body, +which the house was become powerful enough to assert against the +Crown. + +It is doubtless a problem of no inconsiderable difficulty to determine +with perfect exactness, by what class of persons the electoral franchise +in ancient boroughs was originally possessed; yet not perhaps so much +so as the carelessness of some, and the artifices of others, have +caused it to appear. The different opinions on this controverted +question may be reduced to the four following theses:--1. The original +right as enjoyed by boroughs represented in the parliaments of Edward +I., and all of later creation, where one of a different nature has not +been expressed in the charter from which they derive the privilege, +was in the inhabitant householders resident in the borough, and paying +scot and lot, under those words including local rates, and probably +general taxes. 2. The right sprang from the tenure of certain freehold +lands or burgages within the borough, and did not belong to any but +such tenants. 3. It was derived from charters of incorporation, and +belonged to the community or freemen of the corporate body. 4. It did +not extend to the generality of freemen, but was limited to the +governing part or municipal magistracy. The actual right of election, +as fixed by determinations of the House of Commons before 1772, and by +committees under the Grenville act since, is variously grounded upon +some of these four principal rules, each of which has been subject to +subordinate modifications which produce still more complication and +irregularity. + +Of these propositions, the first was laid down by a celebrated +committee of the House of Commons in 1624, the chairman whereof was +Serjeant Glanville, and the members, as appears by the list in the +journals, the most eminent men, in respect of legal and +constitutional knowledge, that were ever united in such a body. It is +called by them the common-law right, and that which ought always to +obtain, where prescriptive usage to the contrary cannot be shown. But +it has met with very little favour from the House of Commons since the +restoration. The second has the authority of Lord Holt in the case of +Ashby and White, and of some other lawyers who have turned their +attention to the subject. It countenances what is called the right of +burgage tenure; the electors in boroughs of this description being +such as hold burgages or ancient tenements within the borough. The +next theory, which attaches the primary franchise to the freemen of +corporations, has on the whole been most received in modern times, if +we look either at the decisions of the proper tribunal, or the current +doctrine of lawyers. The last proposition is that of Dr. Brady, who in +a treatise of boroughs, written to serve the purposes of James II., +though not published till after the revolution, endeavoured to settle +all elective rights on the narrowest and least popular basis. This +work gained some credit, which its perspicuity and acuteness would +deserve, if these were not disgraced by a perverse sophistry and +suppression of truth. + +It does not appear at all probable that such varying and indefinite +usages, as we find in our present representation of boroughs, could +have begun simultaneously, when they were first called to parliament +by Edward I. and his two next descendants. There would have been what +may be fairly called a common-law right, even were we to admit that +some variation from it may, at the very commencement, have occurred in +particular places. The earliest writ of summons directed the sheriff +to make a return from every borough within his jurisdiction, without +any limitation to such as had obtained charters, or any rule as to the +electoral body. Charters, in fact, incorporating towns seem to have +been by no means common in the thirteenth and fourteenth centuries; +and though they grew more frequent afterwards, yet the first that gave +expressly a right of returning members to parliament was that of +Wenlock under Edward IV. These charters, it has been contended, were +incorporations of the inhabitants, and gave no power either to exclude +any of them or to admit non-resident strangers, according to the +practice of later ages. But, however this may be, it is highly +probable that the word burgess (burgensis), long before the elective +franchise or the character of a corporation existed, meant literally +the free inhabitant householder of a borough, a member of its +court-leet, and subject to its jurisdiction. We may, I believe, reject +with confidence what I have reckoned as the third proposition; namely, +that the elective franchise belonged, as of common right, to the +freemen of corporations; and still more that of Brady, which few would +be found to support at the present day. + +There can, I should conceive, be little pretence for affecting to +doubt that the burgesses of Domesday-book, of the various early +records cited by Madox and others, and of the writs of summons to +Edward's parliament, were inhabitants of tenements within the borough. +But it may remain to be proved that any were entitled to the +privileges or rank of burgesses, who held less than an estate of +freehold in their possessions. The burgage-tenure, of which we read in +Littleton, was evidently freehold; and it might be doubtful whether +the lessees of dwellings for a term of years, whose interest, in +contemplation of law, is far inferior to a freehold, were looked upon +as sufficiently domiciled within the borough to obtain the appellation +of burgesses. It appears from Domesday that the burgesses, long before +any incorporation, held lands in common belonging to their town; they +had also their guild or market-house, and were entitled in some places +to tolls and customs. These permanent rights seem naturally restrained +to those who possessed an absolute property in the soil. There can +surely be no question as to mere tenants at will, liable to be removed +from their occupation at the pleasure of the lord; and it is perhaps +unnecessary to mention that the tenancy from year to year, so usually +present, is of very recent introduction. As to estates for a term of +years, even of considerable duration, they were probably not uncommon +in the time of Edward I.; yet far outnumbered, as I should conceive, +by those of a freehold nature. Whether these lessees were contributory +to the ancient local burthens of scot and lot, as well as to the +tallages exacted by the king, and tenths afterwards imposed by +parliament in respect of movable estate, it seems not easy to +determine; but if they were so, as appears more probable, it was not +only consonant to the principle, that no freeman should be liable to +taxation without the consent of his representatives, to give them a +share in the general privilege of the borough, but it may be inferred +with sufficient evidence from several records, that the privilege and +the burthen were absolutely commensurate; men having been specially +discharged from contributing to tallages, because they did not +participate in the liberties of the borough, and others being +expressly declared subject to those impositions, as the condition of +their being admitted to the rights of burgesses.[69] It might however +be conjectured that a difference of usage between those boroughs, +where the ancient exclusive rights of burgage tenants were maintained, +and those where the equitable claim of taxable inhabitants possessing +only a chattel interest received attention, might ultimately produce +those very opposite species of franchise, which we find in the scot +and lot borough, and in those of burgage-tenure. If the franchise, as +we now denominate it, passed in the thirteenth century for a burthen, +subjecting the elector to bear his part in the payment of wages to the +representative, the above conjecture will be equally applicable, by +changing the words right and claim into liability.[70] + +It was according to the natural course of things, that the mayors or +bailiffs, as returning officers, with some of the principal burgesses +(especially where incorporating charters had given them a +pre-eminence), would take to themselves the advantage of serving a +courtier or neighbouring gentleman, by returning him to parliament, +and virtually exclude the general class of electors, indifferent to +public matters, and without a suspicion that their individual +suffrages could ever be worth purchase. It is certain that a seat in +the Commons was an object of ambition in the time of Edward IV., and I +have little doubt that it was so in many instances much sooner. But +there existed not the means of that splendid corruption which has +emulated the Crassi and Luculli of Rome. Even so late as 1571, Thomas +Long, a member for Westbury, confessed that he had given four pounds +to the mayor and another person for his return. The elections were +thus generally managed, not often perhaps by absolute bribery, but +through the influence of the government and of the neighbouring +aristocracy; and while the freemen of the corporation, or resident +householders, were frequently permitted, for the sake of form, to +concur in the election, there were many places where the smaller part +of the municipal body, by whatever names distinguished, acquired a +sort of prescriptive right through an usage, of which it was too late +to show the commencement.[71] + +It was perceived, however, by the assertors of the popular cause under +James I. that, by this narrowing of the electoral franchise, many +boroughs were subjected to the influence of the privy council, which, +by restoring the householders to their legitimate rights, would +strengthen the interests of the country. Hence Lord Coke lays it down +in his fourth institute, that "if the king newly incorporate an +ancient borough, which before sent burgesses to parliament, and +granteth that certain selected burgesses shall make election of the +burgesses of parliament, where all the burgesses elected before, this +charter taketh not away the election of the other burgesses. And so, +if a city or borough hath power to make ordinances, they cannot make +an ordinance that a less number shall elect burgesses for the +parliament than made the election before; for free elections of +members of the high court of parliament are pro bono publico, and not +to be compared to other cases of election of mayors, bailiffs, etc., +of corporations.[72] He adds, however, "by original grant or by +custom, a selected number of burgesses may elect and bind the +residue." This restriction was admitted by the committee over which +Glanville presided in 1624.[73] But both they and Lord Coke believed +the representation of boroughs to be from a date before what is called +legal memory, that is, the accession of Richard I. It is not easy to +reconcile their principle, that an elective right once subsisting +could not be limited by anything short of immemorial prescription, +with some of their own determinations, and still less with those which +have subsequently occurred, in favour of a restrained right of +suffrage. There seems, on the whole, great reason to be of opinion, +that where a borough is so ancient as to have sent members to +parliament before any charter of incorporation proved, or reasonably +presumed to have been granted, or where the word burgensis is used +without anything to restrain its meaning in an ancient charter, the +right of election ought to have been acknowledged either in the +resident householders paying general and local taxes, or in such of +them as possessed an estate of freehold within the borough. And +whatever may have been the primary meaning of the word burgess, it +appears consonant to the popular spirit of the English constitution +that, after the possessors of leasehold interests became so numerous +and opulent as to bear a very large share in the public burthens, they +should have enjoyed commensurate privileges; and that the resolution +of Mr. Glanville's committee in favour of what they called the +common-law right should have been far more uniformly received, and +more consistently acted upon, not merely as agreeable to modern +theories of liberty, from which some have intimated it to have +sprung, but as grounded on the primitive spirit and intention of the +law of parliament. + +In the reign of Charles II. the House of Commons seems to have become +less favourable to this species of franchise. But after the +revolution, when the struggle of parties was renewed every three years +throughout the kingdom, the right of election came more continually +into question, and was treated with the grossest partiality by the +house, as subordinate to the main interests of the rival factions. +Contrary determinations for the sole purpose of serving these +interests, as each grew in its turn more powerful, frequently +occurred; and at this time the ancient right of resident householders +seems to have grown into disrepute, and given way to that of +corporations, sometimes at large, sometimes only in a limited and very +small number. A slight check was imposed on this scandalous and +systematic injustice by the act 2 G. ii. c. 2, which renders the last +determination of the House of Commons conclusive as to the right of +election.[74] But this enactment confirmed many decisions that cannot +be reconciled with any sensible rule. The same iniquity continued to +prevail in cases beyond its pale; the fall of Sir Robert Walpole from +power was reckoned to be settled, when there appeared a small majority +against him on the right of election at Chippenham, a question not +very logically connected with the merits of his administration; and +the house would to this day have gone on trampling on the franchises +of their constituents, if a statute had not been passed through the +authority and eloquence of Mr. Grenville, which has justly been known +by his name. I shall not enumerate the particular provisions of this +excellent law, which, in point of time, does not fall within the +period of my present work; it is generally acknowledged that, by +transferring the judicature in all cases of controverted elections, +from the house to a sworn committee of fifteen members, the reproach +of partiality has been a good deal lightened, though not perhaps +effaced. + +FOOTNOTES: + +[1] It was said in 18 Car. II. (1666) that "the king by the common law +hath a general prerogative over the printing press; so that none ought +to print a book for public use without his license." This seems, +however, to have been in the argument of counsel; but the court held +that a patent to print law-books exclusively was no monopoly. Carter's +_Reports_, 89. "Matters of state and things that concern the +government," it is said in another case, "were never left to any man's +liberty to print that would." 1 _Mod. Reps._ 258. Kennet informs us +that several complaints having been made, of Lilly's _Grammar_, the +use of which had been prescribed by the royal ecclesiastical +supremacy, it was thought proper in 1664 that a new public form of +grammar should be drawn up and _approved in convocation_, to be +enjoined by the royal authority. One was accordingly brought in by +Bishop Pearson, but the matter dropped. _Life of Charles II._ 274. + +[2] We find an order of council, June 7, 1660, that the stationers' +company do seize and deliver to the secretary of state all copies of +Buchanan's _History of Scotland_, and _De Jure Regni apud Scotos_, +"which are very pernicious to monarchy, and injurious to his majesty's +blessed progenitors." Kennet's _Register_, 176. This was beginning +early. + +[3] Commons' Journals, July 29, 1661. + +[4] 14 Car. II. c. 33. + +[5] _State Trials_, vii. 929. + +[6] This declaration of the judges is recorded in the following +passage of the _London Gazette_, May 5, 1680: "This day the judges +made their report to his majesty in council, in pursuance of an order +of this board, by which they unanimously declare that his majesty may +by law prohibit the printing and publishing of all news-books and +pamphlets of news whatsoever not licensed by his majesty's authority, +as manifestly tending to the breach of the peace and disturbance of +the kingdom. Whereupon his majesty was pleased to direct a +proclamation to be prepared for the restraining the printing of +news-books and pamphlets of news without leave." Accordingly such a +proclamation appears in the _Gazette_ of May 17. + +[7] _State Trials_, vii. 1127; viii. 184, 197. Even North seems to +admit that this was a stretch of power. _Examen_, 564. + +[8] _State Trials_, viii. 163. + +[9] It seems that these warrants, though usual, were known to be +against the law. _State Trials_, vii. 949, 956. Possibly they might +have been justified under the words of the licensing act, while that +was in force; and having been thus introduced, were not laid aside. + +[10] Kennet's _Charles II._ 277. + +[11] _State Trials_, vi. 837. + +[12] Ralph, 297; North's _Examen_, 139; Kennet, 337. Hume of course +pretends that this proclamation would have been reckoned legal in +former times. + +[13] "Sir Hugh Wyndham and others of the grand jury of Somerset were +at the last assizes bound over, by Lord Ch. J. Keeling, to appear at +the K. B. the first day of this term, to answer a misdemeanour for +finding upon a bill of murder, 'billa vera quoad manslaughter,' +against the directions of the judge. Upon their appearance they were +told by the court, being full, that it was a misdemeanour in them, for +they are not to distinguish betwixt murder and manslaughter; for it is +only the circumstance of malice which makes the difference, and that +may be implied by the law, without any fact at all, and so it lies not +in the judgment of a jury, but of the judge; that the intention of +their finding indictments is, that there might be no malicious +prosecution; and therefore, if the matter of the indictment be not +framed of malice, but is verisimilis, though it be not vera, yet it +answers their oaths to present it. Twisden said he had known petty +juries punished in my lord Chief Justice Hyde's time, for disobeying +of the judge's directions in point of law. But, because it was a +mistake in their judgments rather than any obstinacy, the court +discharged them without any fine or other attendance." Pasch. 19 Car. +2; Keeling; Ch. J. Twisden, Wyndham, Morton, justices; Hargrave MSS. +n. 339. + +[14] Journals, 16th Oct. 1667. + +[15] _State Trials_, vi. 967. + +[16] Vaughan's _Reports_; _State Trials_, v. 999. + +[17] See Hargraves' judicious observations on the province of juries. +_State Trials_, vi. 1013. + +[18] Those who were confined by warrants were forced to buy their +liberty of the courtiers; "Which," says Pepys (July 7, 1667), "is a +most lamentable thing that we do professedly own that we do these +things, not for right and justice' sake, but only to gratify this or +that person about the king." + +[19] _State Trials_, vi. 1189. + +[20] Commons' Journals. As the titles only of these bills are entered +in the Journals, their purport cannot be stated with absolute +certainty. They might, however, I suppose, be found in some of the +offices. + +[21] _Parl. Hist._ 661. It was opposed by the court. + +[22] In this session (Feb. 14) a committee was appointed to inspect +the laws, and consider how the king may commit any subject by his +immediate warrant, as the law now stands, and report the same to the +house, and also how the law now stands touching commitments of persons +by the council-table. Ralph supposes (p. 255) that this gave rise to +the habeas corpus act, which is certainly not the case. The statute 16 +Car. I, c. 10, seems to recognise the legality of commitments by the +king's special warrant, or by the privy council, or some, at least, of +its members singly; and I do not know whether this, with long usage, +is not sufficient to support the controverted authority of the +secretary of state. As to the privy council, it is not doubted, I +believe, that they may commit. But it has been held, even in the worst +of times, that a warrant of commitment under the king's own hand, +without seal, or the hand of any secretary, or officer of state, or +justice, is bad. 2 Jac. II. B. R. 2 Shower, 484. + +[23] In the _Parliamentary History_, 845, we find a debate on the +petition of one Harrington to the Commons in 1677, who had been +committed to close custody by the council. But as his demeanour was +alleged to have been disrespectful, and the right of the council to +commit was not disputed, and especially as he seems to have been at +liberty when the debate took place, no proceedings ensued; though the +commitment had not been altogether regular. Ralph (p. 314) comments +more severely on the behaviour of the house than was necessary. + +[24] 31 Car. II. c. 2. + +[25] The puisne judges of the common pleas granted a habeas corpus, +against the opinion of Chief-Justice Vaughan, who denied the court to +have that power. Carter's _Reports_, 221. + +[26] The court of King's Bench directed a habeas corpus to the +governor of Jersey, to bring up the body of Overton, a well-known +officer of the commonwealth, who had been confined there several +years. Siderfin's _Reports_, 386. This was in 1668, after the fall of +Clarendon, when a less despotic system was introduced. + +[27] See the Lords' questions and answers of the judges in _Parl. +Hist._ xv. 898; or Bacon's _Abridgment_, tit. Habeas Corpus; also +Wilmot's _Judgments_, 81. This arose out of a case of impressment, +where the expeditious remedy of habeas corpus is eminently necessary. + +[28] 56 G. III. c. 100. + +[29] It was ordered 21 Jan. 1549, that the eldest son of the Earl of +Bedford should continue in the house after his father had succeeded to +the peerage. And, 9th Feb. 1575, that his son should do so, "according +to the precedent in the like case of the now earl his father." It is +worthy of notice that this determination, which, at the time, seems to +have been thought doubtful, though very unreasonably (Journals, 10th +Feb.), but which has had an influence which no one can fail to +acknowledge, in binding together the two branches of the legislature, +and in keeping alive the sympathy for public and popular rights in the +English nobility (that _sensus communis_, which the poet thought so +rare in high rank) is first recorded, and that twice over, in behalf +of a family, in whom the love of constitutional freedom has become +hereditary, and who may be justly said to have deserved, like the +Valerii at Rome, the surname of Publicolae. + +[30] The form of appointing receivers and tryers of petitions, though +intermitted during the reign of William III. was revived afterwards, +and finally not discontinued without a debate in the House of Lords, +and a division, in 1740. _Parl. Hist._ xi. 1013. + +[31] Hargrave, p. 60. The proofs are in the Lords' Journals. + +[32] They were very rare after the accession of Henry V.; but one +occurs in 10th Hen. VI. 1432, with which Hale's list concludes. +Hargrave's Preface to Hale, p. 7. This editor justly observes, that +the incomplete state of the votes and early journals renders the +negative proof inconclusive; though we may be fully warranted in +asserting that from Henry V. to James I. there was very little +exercise of judicial power in parliament, either civilly or +criminally. + +[33] 27th Eliz. c. 8. + +[34] Lords' Journals, May 18, 1660. + +[35] Commons' Journals, May 22. + +[36] Lords' Journals, June 4, 6, 14, 20, 22 _et alibi saepe_. "Upon +information given that some person in the late times had carried away +goods from the house of the Earl of Northampton, leave was given to +the said earl, by his servants and agents, to make diligent and narrow +search in the dwelling-houses of certain persons, and to break open +any door or trunk that shall not be opened in obedience to the order." +June 26. The like order was made next day for the Marquis of +Winchester, the Earls of Derby and Newport, etc. A still more +extraordinary vote was passed August 16. Lord Mohun having complained +of one Keigwin, and his attorney Danby, for suing him by common +process in Michaelmas term, 1651, in breach of privilege of peerage, +the house voted that he should have damages: nothing could be more +scandalously unjust, and against the spirit of the bill of indemnity. +Three presbyterian peer protested. + +[37] They resolved, in the case of the Earl of Pembroke, Jan. 30, +1678, that the single testimony of a commoner is not sufficient +against a peer. + +[38] Journals, Aug. 2 and 15, 1660. + +[39] _Id._ July 29, 1661. + +[40] _Id._ Oct. 31, 1665. + +[41] For the whole of this business, which is erased from the journals +of both houses, see _State Trials_, v. 711; _Parl. Hist._ iv. 431, +443; Hatsell's _Precedents_, iii. 336; and Hargrave's Preface to +Hale's _Jurisdiction of the Lords_, 101. + +[42] Hale says, "I could never get to any precedent of greater +antiquity than 3 Car. I. nay scarce before 16 Car. I. of any such +proceeding in the Lords' house." C. 33, and see Hargrave's Preface, +53. + +[43] _Id._ c. 31. + +[44] It was ordered in a petition of Robert Roberts, Esq., that +directions be given to the lord chancellor that he proceed to make a +speedy decree in the court of chancery, according to equity and +justice, notwithstanding there be not any precedent in the case. +Against this Lords Mohun and Lincoln severally protested; the latter +very sensibly observing, that whereas it hath been the prudence and +care of former parliaments to set limits and bounds to the +jurisdiction of chancery, now this order of directions, which implies +a command, opens a gap to set up an arbitrary power in the chancery, +which is hereby countenanced by the House of Lords to act, not +according to the accustomed rules or former precedents of that court, +but according to his own will. Lords' Journals, 29th Nov. 1664. + +[45] It was thrown out against them by the Commons in their angry +conferences about the business of Ashby and White, in 1704, but not +with any serious intention of opposition. + +[46] C. J. May 30. + +[47] _Id._ Nov. 19. Several divisions took place in the course of this +business, and some rather close; the court endeavouring to allay the +fire. The vote to take Sergeant Pemberton into custody for appearing +as counsel at the Lords' bar was only carried by 154 to 146, on June +1. + +[48] Lords' Journals, Nov. 20. + +[49] Lords' and Commons' Journals, May and November 1675; _Parl. +Hist._ 721, 791; _State Trials_, vi. 1121; Hargrave's Preface to Hale, +135; and Hale's _Treatise_, c. 33. + +It may be observed, that the Lords learned a little caution in this +affair. An appeal of one Cottington from the court of delegates to +their house was rejected, by a vote that it did not properly belong to +them, Shaftesbury alone dissentient. June 17, 1678. Yet they had +asserted their right to receive appeals from inferior courts, that +there might be no failure of justice, in terms large enough to embrace +the ecclesiastical jurisdiction. May 6, 1675. And it is said that they +actually had done so in 1628. Hargrave, 53. + +[50] _Parl. Hist._ ii. 148. + +[51] _Id._ 200. + +[52] _Id._ 300 (43 Edw. 3). + +[53] _Rot. Parl._ iii. 611; _View of Middle Ages_, ii. 310. + +[54] 14 E. 3, stat. 1, c. 21. This statute is remarkable for a promise +of the Lords not to assent in future to any charge beyond the old +custom, without assent of the Commons in full parliament. Stat. 2, +same year; the king promises to lay on no charge but by assent of the +Lords and Commons. 18 E. 3, stat. 2, c. 1; the Commons grant +two-fifteenths of the commonalty, and two-tenths of the cities and +boroughs. "Et en cas que notre signeur le roi passe la mer, de paier a +mesmes les tems les quinzisme et disme del second an, et nemy en autre +maniere. Issint que les deniers de ce levez soient despendus, en les +besoignes a eux monstez a cest parlement, par avis des grauntz a ce +assignez, et que les aides de la Trent soient mys en defense de +north." This is a remarkable precedent for the usage of appropriation, +which had escaped me, though I have elsewhere quoted that in 5 Rich. +2, stat. 2, c. 2 and 3. In two or three instances, we find grants of +tenths and fifteenths in the statutes, without any other matter, as 14 +E. 3, stat. 1, c. 20; 27 E. 3, stat. 1, c. 4. + +[55] 7 H. 7, c. 11; 12 H. 7, c. 12. + +[56] I find only one exception, 5 H. 8, c. 17, which was in the now +common form: Be it enacted by the king our sovereign lord, and by the +assent, etc. + +[57] In 37 H. 8, c. 25, both Lords and Commons are said to grant, and +they pray that their grant "may be ratified and confirmed by his +majesty's royal assent, so to be enacted and authorised by virtue of +this present parliament as in such cases heretofore has been +accustomed." + +[58] Commons' Journals, 24, 29 July; Lords' Journals, 30 July. + +[59] They expressed this with strange latitude in a resolution some +years after, that all aids and supplies to his majesty in parliament +are _the sole gift of the Commons_. _Parl. Hist._ 1005. As they did +not mean to deny that the Lords must concur in the bill, much less +that they must pay their quota, this language seems indefensible. + +[60] Lords' and Commons' Journals, April 17th and 22nd, 1679; _Parl. +Hist._ iv. 480; Hatsell's _Precedents_, iii. 109, 368, 409. + +In a pamphlet by Lord Anglesea, if I mistake not, entitled, "Case +stated of the Jurisdiction of the House of Lords in point of +Impositions," 1696, a vigorous and learned defence of the right of the +Lords to make alterations in money-bills, it is admitted that they +cannot increase the rates; since that would be to originate a charge +on the people, which they cannot do. But it is even said in the +year-book (33 H. 6) that if the Commons grant tonnage for four years, +and the Lords reduce the terms to two years, they need not send the +bill down again. This of course could not be supported in modern +times. + +[61] _Parl. Hist._ ii. 563. + +[62] The principles laid down by Hatsell are: 1. That in bills of +supply, the Lords can make no alteration but to correct verbal +mistakes. 2. That in bills, not of absolute supply, yet imposing +burthens, as turnpike acts, etc., the Lords cannot alter the quantum +of the toll, the persons to manage it, etc.; but in other clauses they +may make amendments. 3. That, where a charge may indirectly be thrown +on the people by a bill, the Commons object to the Lords making +amendments. 4. That the Lords cannot insert pecuniary penalties in a +bill, or alter those inserted by the Commons, iii. 137. He seems to +boast that the Lords during the last century have very faintly opposed +the claim of the Commons. But surely they have sometimes done so in +practice, by returning a money-bill, or what the lower house call one, +amended; and the Commons have had recourse to the evasion of throwing +out such bill and bringing in another with the amendments inserted in +it; which does not look very triumphant. + +[63] The last instance mentioned by Hatsell is in 1790, when the Lords +had amended a bill for regulating Warwick gaol by changing the rate to +be imposed from the landowners to the occupiers, iii. 131. I am not at +present aware of any subsequent case, but rather suspect that such +might be found. + +[64] See the case of the Earl of Arundel in parliament in 1626. In one +instance the house took notice that a writ of summons had been issued +to the Earl of Mulgrave, he being under age, and addressed the king that +he would be pleased to be sparing of writs of this nature for the future. +20th Oct. 1667. The king made an excuse that he did not know the earl +was much under age, and would be careful for the future. 29th Oct. + +[65] Though the proposition in the text is, I believe, generally true, +it has occurred to me since, that there are some exceptions in the +northern parts of England; and that both Sheffield and Manchester are +among them. + +[66] It is doubted by Mr. Merewether (_arguendo_) whether Edward and +Mary created so many new boroughs as appears; because the returns +under Henry VII. and Henry VIII. are lost. But the motive operated +more strongly in the latter reigns. _West Looe Case_, 80. + +[67] 25 Car. 2, c. 9. A bill had passed the Commons in 1624 for the +same effect, but failed through the dissolution. + +[68] Journals, 26th Feb. and 20th March 1676-7. + +[69] _Madox Firma, Burgi_, p. 270 _et post_. + +[70] The popular character of the elective franchise in early times +has been maintained by two writers of considerable research and +ability; Mr. Luders, _Reports of Election Cases_, and Mr. Merewether, +in his _Sketch of the History of Boroughs_ and _Report of the West +Looe Case_. The former writer has the following observations, vol. i. +p. 99: "The ancient history of boroughs does not confirm the opinion +above referred to, which Lord Chief Justice Holt delivered in the case +of Ashby _v._ White; viz. that inhabitants not incorporated cannot +send members to parliament but by prescription. For there is good +reason to believe that the elections in boroughs were in the beginning +of representation popular; yet in the reign of Edward I. there were +not perhaps thirty corporations in the kingdom. Who then elected the +members of boroughs not incorporated? Plainly, the inhabitants or +burghers [according to their tenure or situation]; for at that time +every inhabitant of a borough was called a burgess; and Hobart refers +to this usage in support of his opinion in the case of Dungannon. The +manner in which they exercised this right was the same as that in +which the inhabitants of a town, at this day, hold a right of common, +or other such privilege, which many possess who are not incorporated." +The words in brackets, which are not in the printed edition, are +inserted by the author himself in a copy bequeathed to the Inner +Temple library. The remainder of Mr. Luders's note, though too long +for this place, is very good, and successfully repels the _corporate_ +theory. + +[71] The following passage from Vowell's treatise, on the order of the +parliament, published in 1571, and reprinted in Holingshed's +_Chronicles of Ireland_ (vi. 345) seems to indicate that, at least in +practice, the election was in the principal or governing body of the +corporation. "The sheriff of every county, having received his writ, +ought, forthwith, to send his precepts and summons to the mayors, +bailiffs, and head officers of every city, town corporate, borough, +and such places as have been accustomed to send burgesses within his +county, that they do choose and elect among themselves two citizens +for every city, and two burgesses for every borough, according to +their old custom and usage. And these head officers ought then to +assemble themselves, _and the aldermen and common council of every +city or town_; and to make choice among themselves of two able and +sufficient men of every city or town, to serve for and in the said +parliament." + +Now, if these expressions are accurate, it certainly seems that, at +this period, the great body of freemen or inhabitants were not +partakers in the exercise of their franchise. And the following +passage, if the reader will turn to it, wherein Vowell adverts to the +form of a county election, is so differently worded in respect to the +election by the freeholders at large, that we may fairly put a literal +construction upon the former. In point of fact, I have little doubt +that elections in boroughs were for the most part very closely managed +in the sixteenth century, and probably much earlier. This, however, +will not by any means decide the question of right. For we know that +in the reigns of Henry IV. and Henry V. returns for the great county +of York were made by the proxies of a few peers and a few knights; and +there is a still more anomalous case in the reign of Elizabeth, when a +Lady Packington sealed the indenture for the county of Worcester. +Carew's _Hist. of Elections_, part ii. p. 282. But no one would +pretend that the right of election was in these persons, or supposed +by any human being to be so. + +The difficulty to be got over by those who defend the modern decisions +of committees is this. We know that in the reign of Edward I. more +than one hundred boroughs made returns to the writ. If most of these +were not incorporated, nor had any aldermen, capital burgesses and so +forth, by whom were the elections made? Surely by the freeholders, or +by the inhabitants. And if they were so made in the reign of Edward I. +how has the franchise been restrained afterwards? + +[72] 4 Inst. 48; Glanville, pp. 53, 66. That no private agreement, or +by-law of the borough, can restrain the right of election, is laid +down in the same book. P. 17. + +[73] Glanville's case of Bletchingly, p. 33. + +[74] This clause in an act imposing severe penalties on bribery, was +inserted by the House of Lords with the insidious design of causing +the rejection of the whole bill; if the Commons, as might be expected, +should resent such an interference with their privileges. The ministry +accordingly endeavoured to excite this sentiment; but those who had +introduced the bill very wisely thought it better to sacrifice a point +of dignity, rather than lose so important a statute. It was, however, +only carried by two voices to agree with the amendment. _Parl. Hist._ +viii. 754. + + + + +CHAPTER XIV + +THE REIGN OF JAMES II. + + +The great question that has been brought forward at the end of the +last chapter, concerning the right and usage of election in boroughs, +was perhaps of less practical importance in the reign of Charles the +Second than we might at first imagine, or than it might become in the +present age. Whoever might be the legal electors, it is undoubted that +a great preponderance was virtually lodged in the select body of +corporations. It was the knowledge of this that produced the +corporation act soon after the restoration, to exclude the +presbyterians, and the more violent measures of quo warranto at the +end of Charles's reign. If by placing creatures of the court in +municipal offices, or by intimidating the former corporators through +apprehensions of forfeiting their common property and lucrative +privileges, what was called a loyal parliament could be procured, the +business of government, both as to supply and enactment or repeal of +laws, would be carried on far more smoothly, and with less scandal +than by their entire disuse. Few of those who assumed the name of +tories were prepared to sacrifice the ancient fundamental forms of the +constitution. They thought it equally necessary that a parliament +should exist, and that it should have no will of its own, or none at +least, except for the preservation of that ascendancy of the +established religion which even their loyalty would not consent to +surrender. + +_Designs of the king._--It is not easy to determine whether James II. +had resolved to complete his schemes of arbitrary government by +setting aside even the nominal concurrence of the two houses of +parliament in legislative enactments, and especially in levying money +on his subjects. Lord Halifax had given him much offence towards the +close of the late reign, and was considered from thenceforth as a man +unfit to be employed, because in the cabinet, on a question whether +the people of New England should be ruled in future by an assembly or +by the absolute pleasure of the Crown, he had spoken very freely +against unlimited monarchy.[75] James indeed could hardly avoid +perceiving that the constant acquiescence of an English House of +Commons in the measures proposed to it, a respectful abstinence from +all intermeddling with the administration of affairs, could never be +relied upon or obtained at all, without much of that dexterous +management and influence which he thought it both unworthy and +impolitic to exert. It seems clearly that he had determined on trying +their obedience merely as an experiment, and by no means to put his +authority in any manner within their control. Hence he took the bold +step of issuing a proclamation for the payment of customs, which by +law expired at the late king's death;[76] and Barillon mentions +several times, that he was resolved to continue in the possession of +the revenue, whether the parliament should grant it or no. He was +equally decided not to accept it for a limited time. This, as his +principal ministers told the ambassador, would be to establish the +necessity of convoking parliament from time to time, and thus to +change the form of government by rendering the king dependent upon it; +rather than which it would be better to come at once to the extremity +of a dissolution, and maintain the possession of the late king's +revenues by open force.[77] But the extraordinary conduct of this +House of Commons, so unlike any that had met in England for the last +century, rendered any exertion of violence on this score quite +unnecessary. + +_Parliament of 1685._--The behaviour of that unhonoured parliament, +which held its two short sessions in 1685, though in a great measure +owing to the fickleness of the public mind and rapid ascendancy of +tory principles during the late years, as well as to a knowledge of +the king's severe and vindictive temper, seems to confirm the +assertion strongly made at the time within its walls, that many of the +members had been unduly returned.[78] The notorious facts indeed, as +to the forfeiture of corporations throughout the kingdom, and their +regrant under such restrictions as might serve the purpose of the +Crown, stand in need of no confirmation. Those who look at the debates +and votes of this assembly, their large grant of a permanent revenue +to the annual amount of two millions, rendering a frugal prince, in +time of peace, entirely out of all dependence on his people, their +timid departure from a resolution taken to address the king on the +only matter for which they were really solicitous, the enforcement of +the penal laws, on a suggestion of his displeasure,[79] their bill +entitled, for the preservation of his majesty's person, full of +dangerous innovations in the law of treason, especially one most +unconstitutional clause, that any one moving in either house of +parliament to change the descent of the Crown should incur the +penalties of that offence,[80] their supply of L700,000, after the +suppression of Monmouth's rebellion, for the support of a standing +army,[81] will be inclined to believe that, had James been as zealous +for the church of England as his father, he would have succeeded in +establishing a power so nearly despotic that neither the privileges of +parliament, nor much less those of private men, would have stood in +his way. The prejudice which the two last Stuarts had acquired in +favour of the Roman religion, so often deplored by thoughtless or +insidious writers as one of the worst consequences of their father's +ill fortune, is to be accounted rather among the most signal links in +the chain of causes through which a gracious Providence has favoured +the consolidation of our liberties and welfare. Nothing less than a +motive more universally operating than the interests of civil freedom +would have stayed the compliant spirit of this unworthy parliament, or +rallied, for a time at least, the supporters of indefinite prerogative +under a banner they abhorred. + +_King's intention to repeal the test act._--We know that the king's +intention was to obtain the repeal of the habeas corpus act, a law +which he reckoned as destructive of monarchy as the test was of the +catholic religion.[82] And I see no reason to suppose that he would +have failed of this, had he not given alarm to his high-church +parliament, by a premature manifestation of his design to fill the +civil and military employments with the professors of his own mode of +faith. + +It has been doubted by Mr. Fox whether James had, in this part of his +reign, conceived the projects commonly imputed to him, of +overthrowing, or injuring by any direct acts of power, the protestant +establishment of this kingdom. Neither the copious extracts from +Barillon's correspondence with his own court, published by Sir John +Dalrymple and himself, nor the king's own memoirs, seem, in his +opinion, to warrant a conclusion that anything farther was intended +than to emancipate the Roman catholics from the severe restrictions of +the penal laws, securing the public exercise of their worship from +molestation, and to replace them upon an equality as to civil offices, +by abrogating the test act of the late reign.[83] We find nevertheless +a remarkable conversation of the king himself with the French +ambassador, which leaves an impression on the mind that his projects +were already irreconcilable with that pledge of support he had rather +unadvisedly given to the Anglican church at his accession. This +interpretation of his language is confirmed by the expressions used at +the same time by Sunderland, which are more unequivocal and point at +the complete establishment of the catholic religion.[84] The +particular care displayed by James in this conversation, and indeed +in so many notorious instances, to place the army, as far as possible, +in the command of catholic officers, has very much the appearance of +his looking towards the employment of force in overthrowing the +protestant church, as well as the civil privileges of his subjects. +Yet he probably entertained confident hopes, in the outset of his +reign, that he might not be driven to this necessity, or at least +should only have occasion to restrain a fanatical populace. He would +rely on the intrinsic excellence of his own religion, and still more +on the temptations that his favour would hold out. For the repeal of +the test would not have placed the two religions on a fair level. +Catholics, however little qualified, would have filled, as in fact +they did under the dispensing power, most of the principal stations in +the court, law, and army. The king told Barillon, he was well enough +acquainted with England to be assured, that the admissibility to +office would make more catholics than the right of saying mass +publicly. There was, on the one hand, a prevailing laxity of principle +in the higher ranks, and a corrupt devotedness to power for the sake +of the emoluments it could dispense, which encouraged the expectation +of such a nominal change in religion as had happened in the sixteenth +century. And, on the other, much was hoped by the king from the church +itself. He had separated from her communion in consequence of the +arguments which her own divines had furnished; he had conversed with +men bred in the school of Laud; and was slow to believe that the +conclusions which he had, not perhaps unreasonably, derived from the +semi-protestant theology of his father's reign, would not appear +equally irresistible to all minds, when free from the danger and +obloquy that had attended them. Thus by a voluntary return of the +clergy and nation to the bosom of the catholic church, he might both +obtain an immortal renown, and secure his prerogative against that +religious jealousy which had always been the aliment of political +factions.[85] Till this revolution however could be brought about, he +determined to court the church of England, whose boast of exclusive +and unlimited loyalty could hardly be supposed entirely hollow, in +order to obtain the repeal of the penal laws and disqualifications +which affected that of Rome. And though the maxims of religious +toleration had been always in his mouth, he did not hesitate to +propitiate her with the most acceptable sacrifice, the persecution of +nonconforming ministers. He looked upon the dissenters as men of +republican principles; and if he could have made his bargain for the +free exercise of the catholic worship, I see no reason to doubt that +he would never have announced his general indulgence to tender +consciences.[86] + +_James deceived as to the disposition of his subjects._--But James +had taken too narrow a view of the mighty people whom he governed. The +laity of every class, the tory gentleman almost equally with the +presbyterian artisan, entertained an inveterate abhorrence of the +Romish superstition. Their first education, the usual tenor of +preaching, far more polemical than at present, the books most current, +the tradition of ancient cruelties and conspiracies, rendered this a +cardinal point of religion even with those who had little beside. Many +still gave credit to the popish plot; and with those who had been +compelled to admit its general falsehood, there remained, as is +frequently the case, an indefinite sense of dislike and suspicion, +like the swell of waves after a storm, which attached itself to all +the objects of that calumny.[87] This was of course enhanced by the +insolent and injudicious confidence of the Romish faction, especially +the priests, in their demeanour, their language, and their +publications. Meanwhile a considerable change had been wrought in the +doctrinal system of the Anglican church since the restoration. The men +most conspicuous in the reign of Charles II. for their writings, and +for their argumentative eloquence in the pulpit, were of the class who +had been denominated Latitudinarian divines; and while they maintained +the principles of the Remonstrants in opposition to the school of +Calvin, were powerful and unequivocal supporters of the protestant +cause against Rome. They made none of the dangerous concessions which +had shaken the faith of the Duke and Duchess of York, they regretted +the disuse of no superstitious ceremony, they denied not the one +essential characteristic of the reformation, the right of private +judgment, they avoided the mysterious jargon of a real presence in the +Lord's Supper. Thus such an agreement between the two churches as had +been projected at different times was become far more evidently +impracticable, and the separation more broad and defined.[88] These +men, as well as others who do not properly belong to the same class, +were now distinguished by their courageous and able defences of the +reformation. The victory, in the judgment of the nation, was wholly +theirs. Rome had indeed her proselytes, but such as it would have been +more honourable to have wanted. The people heard sometimes with +indignation, or rather with contempt, that an unprincipled minister, a +temporising bishop, or a licentious poet, had gone over to the side of +a monarch who made conformity with his religion the only certain path +to his favour. + +_Prorogation of parliament._--The short period of a four years' reign +may be divided by several distinguishing points of time, which make so +many changes in the posture of government. From the king's accession +to the prorogation of parliament on November 30, 1685, he had acted +apparently in concurrence with the same party that had supported him +in his brother's reign, of which his own seemed the natural and almost +undistinguishable continuation. This party, which had become +incomparably stronger than the opposite, had greeted him with such +unbounded professions,[89] the temper of its representatives had been +such in the first session of parliament, that a prince less obstinate +than James might have expected to succeed in attaining an authority +which the nation seemed to offer. A rebellion speedily and decisively +quelled confirms every government; it seemed to place his own beyond +hazard. Could he have been induced to change the order of his designs, +and accustom the people to a military force, and to a prerogative of +dispensing with statutes of temporal concern, before he meddled too +ostensibly with their religion, he would possibly have gained both the +objects of his desire. Even conversions to popery might have been more +frequent, if the gross solicitations of the court had not made them +dishonourable. But, neglecting the hint of a prudent adviser, that the +death of Monmouth left a far more dangerous enemy behind, he suffered +a victory that might have ensured him success, to inspire an arrogant +confidence that led on to destruction. Master of an army, and +determined to keep it on foot, he naturally thought less of a good +understanding with parliament.[90] He had already rejected the +proposition of employing bribery among the members, an expedient very +little congenial to his presumptuous temper and notions of +government.[91] They were assembled, in his opinion, to testify the +nation's loyalty, and thankfulness to their gracious prince for not +taking away their laws and liberties. But, if a factious spirit of +opposition should once prevail, it could not be his fault if he +dismissed them till more becoming sentiments should again gain +ground.[92] Hence, he did not hesitate to prorogue, and eventually to +dissolve, the most compliant House of Commons that had been returned +since his family had sat on the throne, at the cost of L700,000, a +grant of supply which thus fell to the ground, rather than endure any +opposition on the subject of the test and penal laws. Yet, from the +strength of the court in all divisions, it must seem not improbable to +us that he might, by the usual means of management, have carried both +of those favourite measures, at least through the lower house of +parliament. For the Crown lost the most important division only by one +vote, and had in general a majority. The very address about +unqualified officers, which gave the king such offence as to bring on +a prorogation, was worded in the most timid manner; the house having +rejected unanimously the words first inserted by their committee, +requesting that his majesty would be pleased not to continue them in +their employments, for a vague petition that "he would be graciously +pleased to give such directions that no apprehensions or jealousies +may remain in the hearts of his majesty's good and faithful +subjects."[93] + +The second period of this reign extends from the prorogation of +parliament to the dismissal of the Earl of Rochester from the treasury +in 1686. During this time James, exasperated at the reluctance of the +Commons to acquiesce in his measures, and the decisive opposition of +the church, threw off the half restraint he had imposed on himself; +and showed plainly that, with a bench of judges to pronounce his +commands, and an army to enforce them, he would not suffer the mockery +of constitutional limitations to stand any longer in his way. Two +important steps were made this year towards the accomplishment of his +designs, by the judgment of the court of king's bench in the case of +Sir Edward Hales, confirming the right of the Crown to dispense with +the test act, and by the establishment of the new ecclesiastical +commission. + +The kings of England, if not immemorially, yet from a very early aera +in our records, had exercised a prerogative unquestioned by +parliament, and recognised by courts of justice, that of granting +dispensations from the prohibitions and penalties of particular laws. +The language of ancient statutes was usually brief and careless, with +few of those attempts to regulate prospective contingencies, which, +even with our pretended modern caution, are so often imperfect; and, +as the sessions were never regular, sometimes interrupted for several +years, there was a kind of necessity, or great convenience, in +deviating occasionally from the rigour of a general prohibition; more +often perhaps some motive of interest or partiality would induce the +Crown to infringe on the legal rule. This dispensing power, however, +grew up, as it were, collaterally to the sovereignty of the +legislature, which it sometimes appeared to overshadow. It was of +course asserted in large terms by counsellors of state, and too +frequently by the interpreters of law. Lord Coke, before he had +learned the bolder tone of his declining years, lays it down, that no +act of parliament can bind the king from any prerogative which is +inseparable from his person, so that he may not dispense with it by a +non-obtante; such is his sovereign power to command any of his +subjects to serve him for the public weal, which solely and +inseparably is annexed to his person, and cannot be restrained by any +act of parliament. Thus, although the statute 23 H. 6, c. 8, provides +that all patents to hold the office of sheriff for more than one year +shall be void, and even enacts that the king shall not dispense with +it; yet it was held by all the judges in the reign of Henry VII. that +the king may grant such a patent for a longer term on good grounds, +whereof he alone is the judge. So also the statutes which restrain the +king from granting pardons in case of murder have been held void; and +doubtless the constant practice has been to disregard them.[94] + +This high and dangerous prerogative, nevertheless, was subject to +several limitations, which none but the grosser flatterers of monarchy +could deny. It was agreed among lawyers that the king could not +dispense with the common law, nor with any statute prohibiting that +which was _malum in se_, nor with any right or interest of a private +person, or corporation.[95] The rules, however, were still rather +complicated, the boundaries indefinite, and therefore varying +according to the political character of the judges. For many years +dispensations had been confined to taking away such incapacity as +either the statutes of a college, or some law of little consequence, +perhaps almost obsolete, might happen to have created. But when a +collusive action was brought against Sir Edward Hales, a Roman +catholic, in the name of his servant, to recover the penalty of L500 +imposed by the test act, for accepting the commission of colonel of a +regiment, without the previous qualification of receiving the +sacrament in the church of England, the whole importance of the +alleged prerogative became visible, and the fate of the established +constitution seemed to hang upon the decision. The plaintiff's +advocate, Northey, was known to have received his fee from the other +side, and was thence suspected, perhaps unfairly, of betraying his own +cause;[96] but the chief justice Herbert showed that no arguments +against this prerogative would have swayed his determination. Not +content with treating the question as one of no difficulty, he +grounded his decision in favour of the defendant upon principles that +would extend far beyond the immediate case. He laid it down that the +kings of England were sovereign princes, that the laws of England were +the king's laws; that it was consequently an inseparable prerogative +of the Crown to dispense with penal laws in particular cases, for +reasons of which it was the sole judge. This he called the ancient +remains of the sovereign power and prerogative of the kings of +England, which never yet was taken from them, nor could be. There was +no law, he said, that might not be dispensed with by the supreme +lawgiver (meaning evidently the king, since the proposition would +otherwise be impertinent); though he made a sort of distinction as to +those which affected the subject's private right. But the general +maxims of slavish churchmen and lawyers were asserted so broadly that +a future judge would find little difficulty in making use of this +precedent to justify any stretch of arbitrary power.[97] + +It is by no means evident that the decision in this particular case of +Hales, which had the approbation of eleven judges out of twelve, was +against law.[98] The course of former precedents seems rather to +furnish its justification. But the less untenable such a judgment in +favour of the dispensing power might appear, the more necessity would +men of reflection perceive of making some great change in the +relations of the people towards their sovereign. A prerogative of +setting aside the enactments of parliament, which in trifling matters, +and for the sake of conferring a benefit on individuals, might be +suffered to exist with little mischief, became intolerable when +exercised in contravention of the very principle of those statutes +which had been provided for the security of fundamental liberties or +institutions. Thus the test act, the great achievement, as it had been +reckoned, of the protestant party, for the sake of which the most +subservient of parliaments had just then ventured to lose the king's +favour, became absolutely nugatory and ineffective, by a construction +which the law itself did not reject. Nor was it easy to provide any +sufficient remedy by means of parliament; since it was the doctrine of +the judges, that the king's inseparable and sovereign prerogatives in +matters of government could not be taken away or restrained by +statute. The unadvised assertion in a court of justice of this +principle, which though not by any means novel, had never been +advanced in a business of such universal concern and interest, may be +said to have sealed the condemnation of the house of Stuart. It made +the co-existence of an hereditary line, claiming a sovereign +prerogative paramount to the liberties they had vouchsafed to +concede, incompatible with the security or probable duration of those +liberties. This incompatibility is the true basis of the revolution in +1688. + +But, whatever pretext the custom of centuries or the authority of +compliant lawyers might afford for these dispensations from the test, +no legal defence could be made for the ecclesiastical commission of +1686. The high commission court of Elizabeth had been altogether taken +away by an act of the long parliament, which went on to provide that +no new court should be erected with the like power, jurisdiction, and +authority. Yet the commission issued by James II. followed very nearly +the words of that which had created the original court under +Elizabeth, omitting a few particulars of little moment.[99] It is not +known, I believe, at whose suggestion the king adopted this measure. +The pre-eminence reserved by the commission to Jefferies, whose +presence was made necessary to all their meetings, and the violence +with which he acted in all their transactions on record, seems to +point him out as its great promoter; though it is true that, at a +later period, Jefferies seems to have perceived the destructive +indiscretion of the popish counsellors. It displayed the king's change +of policy and entire separation from that high-church party, to whom +he was indebted for the throne; since the manifest design of the +ecclesiastical commission was to bridle the clergy, and silence the +voice of protestant zeal. The proceedings against the Bishop of +London, and other instances of hostility to the established religion, +are well known. + +Elated by success and general submission, exasperated by the +reluctance and dissatisfaction of those on whom he had relied for an +active concurrence with his desires, the king seems at least by this +time to have formed the scheme of subverting, or impairing as far as +possible, the religious establishment. He told Barillon, alluding to +the ecclesiastical commission, that God had permitted all the statutes +which had been enacted against the catholic religion to become the +means of its re-establishment.[100] But the most remarkable evidence +of this design was the collation of Massey, a recent convert, to the +deanery of Christ Church, with a dispensation from all the statutes +of uniformity and other ecclesiastical laws, so ample that it made a +precedent, and such it was doubtless intended to be, for bestowing any +benefices upon members of the church of Rome. This dispensation seems +to have been not generally known at the time. Burnet has stated the +circumstances of Massey's promotion inaccurately; and no historian, I +believe, till the publication of the instrument after the middle of +the last century, was fully aware of the degree in which the king had +trampled upon the securities of the established church in this +transaction.[101] + +_Dismissal of Lord Rochester._--A deeper impression was made by the +dismissal of Rochester from his post of lord treasurer; so nearly +consequent on his positive declaration of adherence to the protestant +religion, after the dispute held in his presence at the king's +particular command, between divines of both persuasions, that it had +much the appearance of a resolution taken at court to exclude from the +high offices of the state all those who gave no hope of +conversion.[102] Clarendon had already given way to Tyrconnel in the +government of Ireland; the privy seal was bestowed on a catholic peer, +Lord Arundel; Lord Bellasis, of the same religion, was now placed at +the head of the commission of the treasury; Sunderland, though he did +not yet cease to conform, made no secret of his pretended change of +opinion; the council board, by virtue of the dispensing power, was +filled with those who would refuse the test; a small junto of +catholics, with Father Petre, the king's confessor, at their head, +took the management of almost all affairs upon themselves;[103] men, +whose known want of principle gave reason to expect their compliance, +were raised to bishoprics; there could be no rational doubt of a +concerted scheme to depress and discountenance the established church. +The dismissal of Rochester, who had gone great lengths to preserve his +power and emoluments, and would in all probability have concurred in +the establishment of arbitrary power under a protestant +sovereign,[104] may be reckoned the most unequivocal evidence of the +king's intentions; and from thence we may date the decisive measures +that were taken to counteract them. + +_Prince of Orange alarmed._--It was, I do not merely say the interest, +but the clear right and bounden duty, of the Prince of Orange, to +watch over the internal politics of England, on account of the near +connection which his own birth and his marriage with the presumptive +heir had created. He was never to be reckoned a foreigner as to this +country, which, even in the ordinary course of succession, he might be +called to govern. From the time of his union with the Princess Mary, +he was the legitimate and natural ally of the whig party; alien in all +his sentiments from his two uncles, neither of whom, especially James, +treated him with much regard, on account merely of his attachment to +religion and liberty, for he might have secured their affection by +falling into their plans. Before such differences as subsisted between +these personages, the bonds of relationship fall asunder like flax; +and William would have had at least the sanction of many precedents in +history, if he had employed his influence to excite sedition against +Charles or James, and to thwart their administration. Yet his conduct +appears to have been merely defensive; nor had he the remotest +connection with the violent and factious proceedings of Shaftesbury +and his partisans. He played a very dexterous, but apparently very +fair, game throughout the last years of Charles; never losing sight of +the popular party, through whom alone he could expect influence over +England during the life of his father-in-law, while he avoided any +direct rupture with the brothers, and every reasonable pretext for +their taking offence. + +It has never been established by any reputable testimony, though +perpetually asserted, nor is it in the least degree probable, that +William took any share in prompting the invasion of Monmouth.[105] But +it is nevertheless manifest that he derived the greatest advantage +from this absurd rebellion and from its failure; not only, as it +removed a mischievous adventurer, whom the multitude's idle +predilection had elevated so high, that factious men would, under +every government, have turned to account his ambitious imbecility; but +as the cruelty with which this unhappy enterprise was punished +rendered the king odious,[106] while the success of his arms inspired +him with false confidence, and neglect of caution. Every month, as it +brought forth evidence of James's arbitrary projects, increased the +number of those who looked for deliverance to the Prince of Orange, +either in the course of succession, or by some special interference. +He had, in fact, a stronger motive for watching the councils of his +father-in-law than has generally been known. The king was, at his +accession, in his fifty-fifth year, and had no male children; nor did +the queen's health give much encouragement to expect them. Every dream +of the nation's voluntary return to the church of Rome must have +vanished, even if the consent of a parliament could be obtained, which +was nearly vain to think of; or if open force and the aid of France +should enable James to subvert the established religion, what had the +catholics to anticipate from his death, but that fearful reaction +which had ensued upon the accession of Elizabeth? This had already so +much disheartened the moderate part of their body that they were most +anxious not to urge forward a change, for which the kingdom was not +ripe, and which was so little likely to endure, and used their +influence to promote a reconciliation between the king and Prince of +Orange, contenting themselves with that free exercise of their worship +which was permitted in Holland.[107] But the ambitious priesthood who +surrounded the throne had bolder projects. A scheme was formed early +in the king's reign, to exclude the Princess of Orange from the +succession in favour of her sister Anne, in the event of the latter's +conversion to the Romish faith. The French ministers at our court, +Barillon and Bonrepos, gave ear to this hardy intrigue. They flattered +themselves that both Anne and her husband were favourably disposed. +But in this they were wholly mistaken. No one could be more +unconquerably fixed in her religion than that princess. The king +himself, when the Dutch ambassador, Van Citers, laid before him a +document, probably drawn up by some catholics of his court, in which +these audacious speculations were developed, declared his indignation +at so criminal a project. It was not even in his power, he let the +prince afterwards know by a message, or in that of parliament, +according to the principles which had been maintained in his own +behalf, to change the fundamental order of succession to the +Crown.[108] Nothing indeed can more forcibly paint the desperation of +the popish faction than their entertainment of so preposterous a +scheme. But it naturally increased the solicitude of William about the +intrigues of the English cabinet. It does not appear that any direct +overtures were made to the Prince of Orange, except by a very few +malcontents, till the embassy of Dykvelt from the States in the spring +of 1687. It was William's object to ascertain, through that minister, +the real state of parties in England. Such assurances as he carried +back to Holland gave encouragement to an enterprise that would have +been equally injudicious and unwarrantable without them.[109] Danby, +Halifax, Nottingham, and others of the tory, as well as whig factions, +entered into a secret correspondence with the Prince of Orange; some +from a real attachment to the constitutional limitations of monarchy; +some from a conviction that, without open apostasy from the protestant +faith, they could never obtain from James the prizes of their +ambition. This must have been the predominant motive with Lord +Churchill, who never gave any proof of solicitude about civil liberty; +and his influence taught the Princess Anne to distinguish her interest +from those of her father. It was about this time also that even +Sunderland entered upon a mysterious communication with the Prince of +Orange; but whether he afterwards served his present master only to +betray him, as has been generally believed, or sought rather to +propitiate, by clandestine professions, one who might in the course of +events become such, is not perhaps what the evidence already known to +the world will enable us to determine.[110] The apologists of James +have often represented Sunderland's treachery as extending back to the +commencement of this reign, as if he had entered upon the king's +service with no other aim than to put him on measures that would +naturally lead to his ruin. But the simpler hypothesis is probably +nearer the truth: a corrupt and artful statesman could have no better +prospect for his own advantage than the power and popularity of a +government which he administered; it was a conviction of the king's +incorrigible and infatuated adherence to designs which the rising +spirit of the nation rendered utterly infeasible, an apprehension +that, whenever a free parliament should be called, he might experience +the fate of Strafford as an expiation for the sins of the Crown, which +determined him to secure as far as possible his own indemnity upon a +revolution that he could not have withstood.[111] + +The dismissal of Rochester was followed up at no great distance of +time, by the famous declaration for liberty of conscience, suspending +the execution of all penal laws concerning religion, and freely +pardoning all offences against them, in as full a manner as if each +individual had been named. He declared also his will and pleasure that +the oaths of supremacy and allegiance, and the several tests enjoined +by statutes of the late reign, should no longer be required of any one +before his admission to offices of trust. The motive of this +declaration was not so much to relieve the Roman catholics from penal +and incapacitating statutes (which, since the king's accession and the +judgment of the court of king's bench in favour of Hales, were +virtually at an end), as by extending to the protestant dissenters the +same full measure of toleration, to enlist under the standard of +arbitrary power those who had been its most intrepid and steadiest +adversaries. It was after the prorogation of parliament that he had +begun to caress that party, who in the first months of his reign had +endured a continuance of their persecution.[112] But the clergy in +general detested the nonconformists still more than the papists, and +had always abhorred the idea of even a parliamentary toleration. The +present declaration went much farther than the recognised prerogative +of dispensing with prohibitory statutes. Instead of removing the +disability from individuals by letters patent, it swept away at once, +in effect, the solemn ordinances of the legislature. There was, +indeed, a reference to the future concurrence of the two houses, +whenever he should think it convenient for them to meet; but so +expressed as rather to insult, than pay respect to, their +authority.[113] And no one could help considering the declaration of a +similar nature just published in Scotland, as the best commentary on +the present. In that he suspended all laws against the Roman catholics +and moderate presbyterians, "by his sovereign authority, prerogative +royal, and absolute power, which all his subjects were to obey without +reserve;" and its whole tenor spoke, in as unequivocal language as his +grandfather was accustomed to use, his contempt of all pretended +limitations on his will.[114] Though the constitution of Scotland was +not so well balanced as our own, it was notorious that the Crown did +not legally possess an absolute power in that kingdom; and men might +conclude that, when he should think it less necessary to observe some +measures with his English subjects, he would address them in the same +strain. + +Those, indeed, who knew by what course his favour was to be sought, +did not hesitate to go before, and light him, as it were, to the altar +on which their country's liberty was to be the victim. Many of the +addresses which fill the columns of the _London Gazette_ in 1687, on +occasion of the declaration of indulgence, flatter the king with +assertions of his dispensing power. The benchers and barristers of the +Middle Temple, under the direction of the prostitute Shower, were +again foremost in the race of infamy. They thank him "for asserting +his own royal prerogatives, the very life of the law, and of their +profession; which prerogatives, as they were given by God himself, so +no power upon earth could diminish them, but they must always remain +entire and inseparable from his royal person; which prerogatives as +the addressers had studied to know, so they were resolved to defend, +by asserting with their lives and fortunes that divine maxim, _a Deo +rex, a lege rex_."[115] + +These addresses, which, to the number of some hundreds, were sent up +from every description of persons, the clergy, the nonconformists of +all denominations, the grand juries, the justices of the peace, the +corporations, the inhabitants of towns, in consequence of the +declaration, afford a singular contrast to what we know of the +prevailing dispositions of the people in that year, and of their +general abandonment of the king's cause before the end of the next. +Those from the clergy, indeed, disclose their ill-humour at the +unconstitutional indulgence, limiting their thanks to some promises of +favour the king had used towards the established church. But as to the +rest, we should have cause to blush for the servile hypocrisy of our +ancestors, if there were not good reason to believe that these +addresses were sometimes the work of a small minority in the name of +the rest, and that the grand juries and the magistracy in general had +been so garbled for the king's purposes in this year that they formed +a very inadequate representation of that great class from which they +ought to have been taken.[116] It was however very natural that they +should deceive the court. The catholics were eager for that security +which nothing but an act of the legislature could afford; and James, +who, as well as his minister, had a strong aversion to the measure, +seems about the latter end of the summer of 1687 to have made a sudden +change in his scheme of government, and resolved once more to try the +disposition of a parliament. For this purpose, having dissolved that +from which he could expect nothing hostile to the church, he set +himself to manage the election of another in such a manner as to +ensure his main object, the security of the Romish religion.[117] + +"His first care," says his biographer Innes, "was to purge the +corporations from that leaven which was in danger of corrupting the +whole kingdom; so he appointed certain regulators to inspect the +conduct of several borough towns, to correct abuses where it was +practicable, and where not, by forfeiting their charters, to turn out +such rotten members as infected the rest. But in this, as in most +other cases, the king had the fortune to choose persons not too well +qualified for such an employment, and extremely disagreeable to the +people; it was a sort of motley council made up of catholics and +presbyterians, a composition which was sure never to hold long +together, or that could probably unite in any method suitable to both +their interests; it served therefore only to increase the public odium +by their too arbitrary ways of turning out and putting in; and yet +those who were thus intruded, as it were, by force, being of the +presbyterian party, were by this time become as little inclinable to +favour the king's intentions as the excluded members."[118] + +This endeavour to violate the legal rights of electors as well as to +take away other vested franchises, by new modelling corporations +through commissions granted to regulators, was the most capital +delinquency of the king's government; because it tended to preclude +any reparation for the rest, and directly attacked the fundamental +constitution of the state.[119] But, like all his other measures, it +displayed not more ill-will to the liberties of the nation than +inability to overthrow them. The catholics were so small a body, and +so weak, especially in corporate towns, that the whole effect produced +by the regulators was to place municipal power and trust in the hands +of the nonconformists, those precarious and unfaithful allies of the +court, whose resentment of past oppression, hereditary attachment to +popular principles of government, and inveterate abhorrence of popery, +were not to be effaced by an unnatural coalition. Hence, though they +availed themselves, and surely without reproach, of the toleration +held out to them, and even took the benefit of the scheme of +regulation, so as to fill the corporation of London and many others, +they were, as is confessed above, too much of Englishmen and +protestants for the purposes of the court. The wiser part of the +churchmen made secret overtures to their party; and by assurances of a +toleration, if not also of a comprehension within the Anglican pale, +won them over to a hearty concurrence in the great project that was on +foot.[120] The king found it necessary to descend so much from the +haughty attitude he had taken at the outset of his reign, as personally +to solicit men of rank and local influence for their votes on the two +great measures of repealing the test and penal laws. The country +gentlemen, in their different counties, were tried with circular +questions, whether they would comply with the king in their elections, +or, if themselves chosen, in parliament. Those who refused such a promise +were erased from the lists of justices and deputy-lieutenants.[121] +Yet his biographer admits that he received little encouragement to +proceed in the experiment of a parliament;[122] and it is said by the +French ambassador that evasive answers were returned to these +questions, with such uniformity of expression as indicated an alarming +degree of concert.[123] + +_Affair of Magdalen College._--It is unnecessary to dwell on +circumstances so well known as the expulsion of the fellows of +Magdalen College.[124] It was less extensively mischievous than the +new-modelling of corporations, but perhaps a more glaring act of +despotism. For though the Crown had been accustomed from the time of +the reformation to send very peremptory commands to ecclesiastical +foundations, and even to dispense with their statutes at discretion, +with so little resistance that few seemed to doubt of its prerogative; +though Elizabeth would probably have treated the fellows of any +college much in the same manner as James II., if they had proceeded to +an election in defiance of her recommendation; yet the right was not +the less clearly theirs, and the struggles of a century would have +been thrown away, if James II. was to govern as the Tudors, or even as +his father and grandfather had done before him. And though Parker, +Bishop of Oxford, the first president whom the ecclesiastical +commissioners obtruded on the college, was still nominally a +protestant,[125] his successor Gifford was an avowed member of the +church of Rome. The college was filled with persons of the same +persuasion; mass was said in the chapel, and the established religion +was excluded with a degree of open force which entirely took away all +security for its preservation in any other place. This latter act, +especially, of the Magdalen drama, in a still greater degree than the +nomination of Massey to the deanery of Christ Church, seems a decisive +proof that the king's repeated promises of contenting himself with a +toleration of his own religion would have yielded to his insuperable +bigotry and the zeal of his confessor. We may perhaps add to these +encroachments upon the act of uniformity, the design imputed to him of +conferring the archbishopric of York on Father Petre; yet there would +have been difficulties that seem insurmountable in the way of this, +since the validity of Anglican orders not being acknowledged by the +church of Rome, Petre would not have sought consecration at the hands +of Sancroft; nor, had he done so, would the latter have conferred it +on him, even if the chapter of York had gone through the indispensable +form of an election.[126] + +The infatuated monarch was irritated by that which he should have +taken as a terrible warning, this resistance to his will from the +university of Oxford. That sanctuary of pure unspotted loyalty, as +some would say, that sink of all that was most abject in servility, as +less courtly tongues might murmur, the university of Oxford, which had +but four short years back, by a solemn decree in convocation, poured +forth anathemas on all who had doubted the divine right of monarchy, +or asserted the privileges of subjects against their sovereigns, which +had boasted in its addresses of an obedience without any restrictions +or limitations, which but recently had seen a known convert to popery, +and a person disqualified in other ways, installed by the chapter +without any remonstrance in the deanery of Christ Church, was now the +scene of a firm though temperate opposition to the king's positive +command, and soon after the willing instrument of his ruin. In vain +the pamphleteers, on the side of the court, upbraided the clergy with +their apostacy from the principles they had so much vaunted. The +imputation it was hard to repel; but, if they could not retract their +course without shame, they could not continue in it without +destruction.[127] They were driven to extremity by the order of May 4, +1688, to read the declaration of indulgence in their churches.[128] +This, as is well known, met with great resistance, and, by inducing +the primate and six other bishops to present a petition to the king +against it, brought on that famous persecution, which, more perhaps +than all his former actions, cost him the allegiance of the Anglican +church. The proceedings upon the trial of those prelates are so +familiar as to require no particular notice.[129] What is most worthy +of remark is, that the very party who had most extolled the royal +prerogative, and often in such terms as if all limitations of it were +only to subsist at pleasure, became now the instruments of bringing it +down within the compass and control of the law. If the king had a +right to suspend the execution of statutes by proclamation, the +bishops' petition might not indeed be libellous, but their +disobedience and that of the clergy could not be warranted; and the +principal argument both of the bar and the bench rested on the great +question of that prerogative. + +The king, meantime, was blindly hurrying on at the instigation of his +own pride and bigotry, and of some ignorant priests, confident in the +fancied obedience of the church, and in the hollow support of the +dissenters; after all his wiser counsellors, the catholic peers, the +nuncio, perhaps the queen herself, had grown sensible of the danger, +and solicitous for temporising measures. He had good reason to +perceive that neither the fleet nor the army could be relied upon; to +cashier the most rigidly protestant officers, to draft Irish troops +into the regiments, to place all important commands in the hands of +catholics, were difficult and even desperate measures, which rendered +his designs more notorious, without rendering them more feasible. It +is among the most astonishing parts of this unhappy sovereign's +impolicy, that he sometimes neglected, even offended, never steadily +and sufficiently courted, the sole ally that could by possibility have +co-operated in his scheme of government. In his brother's reign, James +had been the most obsequious and unhesitating servant of the French +king. Before his own accession, his first step was to implore, through +Barillon, a continuance of that support and protection, without which +he could undertake nothing which he had designed in favour of the +catholics. He received a present of 500,000 livres with tears of +gratitude; and telling the ambassador he had not disclosed his real +designs to his ministers, pressed for a strict alliance with Louis, as +the means of accomplishing them.[130] Yet with a strange +inconsistency, he drew off gradually from these professions, and not +only kept on rather cool terms with France during part of his reign, +but sometimes played a double game by treating of a league with Spain. + +_James's coldness towards Louis._--The secret of this uncertain +policy, which has not been well known till very lately, is to be found +in the king's character. James had a real sense of the dignity +pertaining to a king of England, and much of the national pride as +well as that of his rank. He felt the degradation of importuning an +equal sovereign for money, which Louis gave less frequently and in +smaller measure than it was demanded. It is natural for a proud man +not to love those before whom he has abased himself. James, of frugal +habits and master of a great revenue, soon became more indifferent to +a French pension. Nor was he insensible to the reproach of Europe, +that he was grown the vassal of France and had tarnished the lustre of +the English Crown.[131] Had he been himself protestant, or his +subjects catholic, he would probably have given the reins to that +jealousy of his ambitious neighbour, which, even in his peculiar +circumstances, restrained him from the most expedient course; I mean +expedient, on the hypothesis that to overthrow the civil and religious +institutions of his people was to be the main object of his reign. For +it was idle to attempt this without the steady co-operation of France; +and those sentiments of dignity and independence, which at first sight +appear to do him honour, being without any consistent magnanimity of +character, served only to accelerate his ruin, and confirm the +persuasion of his incapacity.[132] Even in the memorable year 1688, +though the veil was at length torn from his eyes on the verge of the +precipice, and he sought in trembling the assistance he had slighted, +his silly pride made him half unwilling to be rescued; and, when the +French ambassador at the Hague, by a bold manoeuvre of diplomacy, +asserted to the States that an alliance already subsisted between his +master and the king of England, the latter took offence at the +unauthorised declaration, and complained privately that Louis treated +him as an inferior.[133] It is probable that a more ingenuous policy +in the court of Whitehall, by determining the king of France to +declare war sooner on Holland, would have prevented the expedition of +the Prince of Orange.[134] + +The latter continued to receive strong assurances of attachment from +men of rank in England; but wanted that direct invitation to enter the +kingdom with force, which he required both for his security and his +justification. No men who thought much about their country's interests +or their own would be hasty in venturing on so awful an enterprise. +The punishment and ignominy of treason, the reproach of history, too +often the sworn slave of fortune, awaited its failure. Thus Halifax +and Nottingham found their conscience or their courage unequal to the +crisis, and drew back from the hardy conspiracy that produced the +revolution.[135] Nor, perhaps, would the seven eminent persons, whose +names are subscribed to the invitation addressed on the 30th of June +1688, to the Prince of Orange, the Earls of Danby, Shrewsbury, and +Devonshire, Lords Delamere and Lumley, the Bishop of London, and +Admiral Russell, have committed themselves so far, if the recent birth +of a Prince of Wales had not made some measures of force absolutely +necessary for the common interests of the nation and the Prince of +Orange.[136] It cannot be said without absurdity, that James was +guilty of any offence in becoming father of this child; yet it was +evidently that which rendered his other offence inexpiable. He was now +considerably advanced in life; and the decided resistance of his +subjects made it improbable that he could do much essential injury to +the established constitution during the remainder of it. The mere +certainty of all reverting to a protestant heir would be an effectual +guarantee of the Anglican church. But the birth of a son to be nursed +in the obnoxious bigotry of Rome, the prospect of a regency under the +queen, so deeply implicated, according to common report, in the +schemes of this reign, made every danger appear more terrible. From +the moment that the queen's pregnancy was announced, the catholics +gave way to enthusiastic unrepressed exultation; and by the confidence +with which they prophesied the birth of an heir, furnished a pretext +for the suspicions which a disappointed people began to +entertain.[137] These suspicions were very general; they extended to +the highest ranks, and are a conspicuous instance of that prejudice +which is chiefly founded on our wishes. Lord Danby, in a letter to +William, of March 27, insinuates his doubt of the queen's pregnancy. +After the child's birth, the seven subscribers to the association +inviting the prince to come over, and pledging themselves to join him, +say that not one in a thousand believe it to be the queen's; Lord +Devonshire separately held language to the same effect.[138] The +Princess Anne talked with little restraint of her suspicions, and made +no scruple of imparting them to her sister.[139] Though no one can +hesitate at present to acknowledge that the Prince of Wales's +legitimacy is out of all question, there was enough to raise a +reasonable apprehension in the presumptive heir, that a party not +really very scrupulous, and through religious animosity supposed to be +still less so, had been induced by the undoubted prospect of advantage +to draw the king, who had been wholly their slave, into one of those +frauds which bigotry might call pious.[140] + +_Justice and necessity of the Revolution._--The great event however of +what has been emphatically denominated in the language of our public +acts the Glorious Revolution stands in need of no vulgar credulity, no +mistaken prejudice, for its support. It can only rest on the basis of +a liberal theory of government, which looks to the public good as the +great end for which positive laws and the constitutional order of +states have been instituted. It cannot be defended without rejecting +the slavish principles of absolute obedience, or even that pretended +modification of them which imagines some extreme cases of intolerable +tyranny, some, as it were, lunacy of despotism, as the only plea and +palliation of resistance. Doubtless the administration of James II. +was not of this nature. Doubtless he was not a Caligula, or a +Commodus, or an Ezzelin, or a Galeazzo Sforza, or a Christiern II. of +Denmark, or a Charles IX. of France, or one of those almost +innumerable tyrants whom men have endured in the wantonness of +unlimited power. No man had been deprived of his liberty by any +illegal warrant. No man, except in the single though very important +instance of Magdalen College, had been despoiled of his property. I +must also add that the government of James II. will lose little by +comparison with that of his father. The judgment in favour of his +prerogative to dispense with the test, was far more according to +received notions of law, far less injurious and unconstitutional, than +that which gave a sanction to ship-money. The injunction to read the +declaration of indulgence in churches was less offensive to scrupulous +men than the similar command to read the declaration of Sunday sports +in the time of Charles I. Nor was any one punished for a refusal to +comply with the one; while the prisons had been filled with those who +had disobeyed the other. Nay, what is more, there are much stronger +presumptions of the father's than of the son's intention to lay aside +parliaments, and set up an avowed despotism. It is indeed amusing to +observe that many, who scarcely put bounds to their eulogies of +Charles I., have been content to abandon the cause of one who had no +faults in his public conduct but such as seemed to have come by +inheritance. The characters of the father and son were very closely +similar: both proud of their judgment as well as their station, and +still more obstinate in their understanding than in their purpose; +both scrupulously conscientious in certain great points of conduct, to +the sacrifice of that power which they had preferred to everything +else; the one far superior in relish for the arts and for polite +letters, the other more diligent and indefatigable in business; the +father exempt from those vices of a court to which the son was too +long addicted; not so harsh perhaps or prone to severity in his +temper, but inferior in general sincerity and adherence to his word. +They were both equally unfitted for the condition in which they were +meant to stand--the limited kings of a wise and free people, the +chiefs of the English commonwealth. + +The most plausible argument against the necessity of so violent a +remedy for public grievances as the abjuration of allegiance to a +reigning sovereign, was one that misled half the nation in that age, +and is still sometimes insinuated by those whose pity for the +misfortunes of the house of Stuart appears to predominate over every +other sentiment which the history of the revolution should excite. It +was alleged that the constitutional mode of redress by parliament was +not taken away; that the king's attempts to obtain promises of support +from the electors and probable representatives showed his intention of +calling one; that the writs were in fact ordered before the Prince of +Orange's expedition; that after the invader had reached London, James +still offered to refer the terms of reconciliation with his people to +a free parliament, though he could have no hope of evading any that +might be proposed; that by reversing illegal judgments, by annulling +unconstitutional dispensations, by reinstating those who had been +unjustly dispossessed, by punishing wicked advisers, above all, by +passing statutes to restrain the excesses and cut off the dangerous +prerogatives of the monarchy (as efficacious, or more so, than the +bill of rights and other measures that followed the revolution), all +risk of arbitrary power, or of injury to the established religion, +might have been prevented without a violation of that hereditary right +which was as fundamental in the constitution as any of the subject's +privileges. It was not necessary to enter upon the delicate problem of +absolute non-resistance, or to deny that the conservation of the whole +was paramount to all positive laws. The question to be proved was, +that a regard to this general safety exacted the means employed in the +revolution, and constituted that extremity which could alone justify +such a deviation from the standard rules of law and religion. + +It is evidently true that James had made very little progress, or +rather experienced a signal defeat, in his endeavour to place the +professors of his own religion on a firm and honourable basis. There +seems the strongest reason to believe that far from reaching his end +through the new parliament, he would have experienced those warm +assaults on the administration, which generally distinguished the +House of Commons under his father and brother. But, as he was in no +want of money, and had not the temper to endure what he thought the +language of republican faction, we may be equally sure that a short +and angry session would have ended with a more decided resolution on +his side to govern in future without such impracticable counsellors. +The doctrine imputed of old to Lord Strafford, that, after trying the +good-will of parliament in vain, a king was absolved from the legal +maxims of government, was always at the heart of the Stuarts. His army +was numerous, according at least to English notions; he had already +begun to fill it with popish officers and soldiers; the militia, +though less to be depended on, was under the command of lord and +deputy lieutenants carefully selected; above all, he would at the last +have recourse to France; and though the experiment of bringing over +French troops was very hazardous, it is difficult to say that he might +not have succeeded, with all these means, in preventing or putting +down any concerted insurrection. But at least the renewal of civil +bloodshed and the anarchy of rebellion seemed to be the alternative of +slavery, if William had never earned the just title of our deliverer. +It is still more evident that, after the invasion had taken place, and +a general defection had exhibited the king's inability to resist, +there could have been no such compromise as the Tories fondly +expected, no legal and peaceable settlement in what they called a free +parliament, leaving James in the real and recognised possession of his +constitutional prerogatives. Those who have grudged William III. the +laurels that he won for our service are ever prone to insinuate, that +his unnatural ambition would be content with nothing less than the +Crown, instead of returning to his country after he had convinced the +king of the error of his counsels, and obtained securities for the +religion and liberties of England. The hazard of the enterprise, and +most hazardous it truly was, was to have been his; the profit and +advantage our own. I do not know that William absolutely expected to +place himself on the throne; because he could hardly anticipate that +James would so precipitately abandon a kingdom wherein he was +acknowledged, and had still many adherents. But undoubtedly he must, +in consistency with his magnanimous designs, have determined to place +England in its natural station, as a party in the great alliance +against the power of Louis XIV. To this one object of securing the +liberties of Europe, and chiefly of his own country, the whole of his +heroic life was directed with undeviating, undisheartened firmness. He +had in view no distant prospect, when the entire succession of the +Spanish monarchy would be claimed by that insatiable prince, whose +renunciation at the treaty of the Pyrenees was already maintained to +be invalid. Against the present aggressions and future schemes of this +neighbour the league of Augsburg had just been concluded. England, a +free, a protestant, a maritime kingdom, would, in her natural +position, as a rival of France, and deeply concerned in the +independence of the Netherlands, become a leading member of this +confederacy. But the sinister attachments of the house of Stuarts had +long diverted her from her true interests, and rendered her councils +disgracefully and treacherously subservient to those of Louis. It was +therefore the main object of the Prince of Orange to strengthen the +alliance by the vigorous co-operation of this kingdom; and with no +other view, the emperor, and even the pope, had abetted his +undertaking. But it was impossible to imagine that James would have +come with sincerity into measures so repugnant to his predilections +and interests. What better could be expected than a recurrence of that +false and hollow system which had betrayed Europe and dishonoured +England under Charles II.; or rather, would not the sense of injury +and thraldom have inspired still more deadly aversion to the cause of +those to whom he must have ascribed his humiliation? There was as +little reason to hope that he would abandon the long-cherished schemes +of arbitrary power, and the sacred interests of his own faith. We must +remember that, when the adherents or apologists of James II. have +spoken of him as an unfortunately misguided prince, they have +insinuated what neither the notorious history of those times, nor the +more secret information since brought to light, will in any degree +confirm. It was indeed a strange excuse for a king of such mature +years, and so trained in the most diligent attention to business. That +in some particular instances he acted under the influence of his +confessor, Petre, is not unlikely; but the general temper of his +administration, his notions of government, the objects he had in view, +were perfectly his own, and were pursued rather in spite of much +dissuasion and many warnings, than through the suggestions of any +treacherous counsellors. + +Both with respect therefore to the Prince of Orange and to the English +nation, James II. was to be considered as an enemy whose resentment +could never be appeased, and whose power consequently must be wholly +taken away. It is true that, if he had remained in England, it would +have been extremely difficult to deprive him of the nominal +sovereignty. But in this case, the Prince of Orange must have been +invested, by some course or other, with all its real attributes. He +undoubtedly intended to remain in this country; and could not +otherwise have preserved that entire ascendancy which was necessary +for his ultimate purposes. The king could not have been permitted, +with any common prudence, to retain the choice of his ministers, or +the command of his army, or his negative voice in laws, or even his +personal liberty; by which I mean, that his guards must have been +either Dutch, or at least appointed by the prince and parliament. Less +than this it would have been childish to require; and this would not +have been endured by any man even of James's spirit, or by the nation, +when the re-action of loyalty should return, without continued efforts +to get rid of an arrangement far more revolutionary and subversive of +the established monarchy than the king's deposition. + +_Favourable circumstances attending the revolution._--In the +revolution of 1688 there was an unusual combination of favouring +circumstances, and some of the most important, such as the king's +sudden flight, not within prior calculation, which render it no +precedent for other times and occasions in point of expediency, +whatever it may be in point of justice. Resistance to tyranny by overt +rebellion incurs not only the risks of failure, but those of national +impoverishment and confusion, of vindictive retaliation, and such +aggressions (perhaps inevitable) on private right and liberty as +render the name of revolution and its adherents odious. Those, on the +other hand, who call in a powerful neighbour to protect them from +domestic oppression, may too often expect to realise the horse of the +fable, and endure a subjection more severe, permanent, and +ignominious, than what they shake off. But the revolution effected by +William III. united the independent character of a national act with +the regularity and the coercion of anarchy which belong to a military +invasion. The United Provinces were not such a foreign potentate as +could put in jeopardy the independence of England; nor could his army +have maintained itself against the inclinations of the kingdom, though +it was sufficient to repress any turbulence that would naturally +attend so extraordinary a crisis. Nothing was done by the multitude; +no new men, soldiers, or demagogues, had their talents brought forward +by this rapid and pacific revolution; it cost no blood, it violated no +right, it was hardly to be traced in the course of justice; the formal +and exterior character of the monarchy remained nearly the same in so +complete a regeneration of its spirit. Few nations can hope to ascend +up to the sphere of a just and honourable liberty, especially when +long use has made the track of obedience familiar, and they have +learned to move as it were only by the clank of the chain, with so +little toil and hardship. We reason too exclusively from this peculiar +instance of 1688, when we hail the fearful struggles of other +revolutions with a sanguine and confident sympathy. Nor is the only +error upon this side. For, as if the inveterate and cankerous ills of +a commonwealth could be extirpated with no loss and suffering, we are +often prone to abandon the popular cause in agitated nations with as +much fickleness as we embraced it, when we find that intemperance, +irregularity, and confusion, from which great revolutions are very +seldom exempt. These are indeed so much their usual attendants, the +re-action of a self-deceived multitude is so probable a consequence, +the general prospect of success in most cases so precarious, that +wise and good men are more likely to hesitate too long, than to rush +forward too eagerly. Yet, "whatever be the cost of this noble liberty, +we must be content to pay it to Heaven."[141] + +It is unnecessary even to mention those circumstances of this great +event, which are minutely known to almost all my readers. They were +all eminently favourable in their effect to the regeneration of our +constitution; even one of temporary inconvenience, namely, the return +of James to London, after his detention by the fishermen near +Feversham. This, as Burnet has observed, and as is easily demonstrated +by the writings of that time, gave a different colour to the state of +affairs, and raised up a party which did not before exist, or at least +was too disheartened to show itself.[142] His first desertion of the +kingdom had disgusted every one, and might be construed into a +voluntary cession. But his return to assume again the government put +William under the necessity of using that intimidation which awakened +the mistaken sympathy of a generous people. It made his subsequent +flight, though certainly not what a man of courage enough to give his +better judgment free play would have chosen, appear excusable and +defensive. It brought out too glaringly, I mean for the satisfaction +of prejudiced minds, the undeniable fact, that the two houses of +convention deposed and expelled their sovereign. Thus the great schism +of the Jacobites, though it must otherwise have existed, gained its +chief strength; and the revolution, to which at the outset a coalition +of whigs and tories had conspired, became in its final result, in the +settlement of the Crown upon William and Mary, almost entirely the +work of the former party. + +But while the position of the new government was thus rendered less +secure, by narrowing the basis of public opinion whereon it stood, the +liberal principles of policy which the whigs had espoused became +incomparably more powerful, and were necessarily involved in the +continuance of the revolution settlement. The ministers of William +III. and of the house of Brunswick had no choice but to respect and +countenance the doctrines of Locke, Hoadley, and Molesworth. The +assertion of passive obedience to the Crown grew obnoxious to the +Crown itself. Our new line of sovereigns scarcely ventured to hear of +their hereditary right, and dreaded the cup of flattery that was +drugged with poison. This was the greatest change that affected our +monarchy by the fall of the house of Stuart. The laws were not so +materially altered as the spirit and sentiments of the people. Hence +those who look only at the former have been prone to underrate the +magnitude of this revolution. The fundamental maxims of the +constitution, both as they regard the king and the subject, may seem +nearly the same; but the disposition with which they were received and +interpreted was entirely different. + +_Its salutary consequences._--It was in this turn of feeling, in this +change, if I may so say, of the heart, far more than in any positive +statutes and improvements of the law, that I consider the revolution +to have been eminently conducive to our freedom and prosperity. Laws +and statutes as remedial, nay more closely limiting the prerogative +than the bill of rights and act of settlement, might possibly have +been obtained from James himself, as the price of his continuance on +the throne, or from his family as that of their restoration to it. But +what the revolution did for us was this; it broke the spell that had +charmed the nation. It cut up by the roots all that theory of +indefeasible right, of paramount prerogative, which had put the Crown +in continual opposition to the people. A contention had now subsisted +for five hundred years, but particularly during the four last reigns, +against the aggressions of arbitrary power. The sovereigns of this +country had never patiently endured the control of parliament; nor was +it natural for them to do so, while the two houses of parliament +appeared historically, and in legal language, to derive their +existence as well as privileges from the Crown itself. They had at +their side the pliant lawyers, who held the prerogative to be +uncontrollable by statutes, a doctrine of itself destructive to any +scheme of reconciliation and compromise between a king and his +subjects; they had the churchmen, whose casuistry denied that the most +intolerable tyranny could excuse resistance to a lawful government. +These two propositions could not obtain general acceptation without +rendering all national liberty precarious. + +It has been always reckoned among the most difficult problems in the +practical science of government, to combine an hereditary monarchy +with security of freedom, so that neither the ambition of kings shall +undermine the people's rights, nor the jealousy of the people overturn +the throne. England had already experience of both these mischiefs. +And there seemed no prospect before her, but either their alternate +recurrence, or a final submission to absolute power, unless by one +great effort she could put the monarchy for ever beneath the law, and +reduce it to an integrant portion instead of the primary source and +principle of the constitution. She must reverse the favoured maxim, "A +Deo rex, a rege lex;" and make the Crown itself appear the creature of +the law. But our ancient monarchy, strong in a possession of seven +centuries, and in those high and paramount prerogatives which the +consenting testimony of lawyers and the submission of parliaments had +recognised, a monarchy from which the House of Commons and every +existing peer, though not perhaps the aristocratic order itself, +derived its participation in the legislature, could not be bent to the +republican theories which have been not very successfully attempted in +some modern codes of constitution. It could not be held, without +breaking up all the foundations of our polity, that the monarchy +emanated from the parliament, or even from the people. But by the +revolution and by the act of settlement, the rights of the actual +monarch, of the reigning family, were made to emanate from the +parliament and the people. In technical language, in the grave and +respectful theory of our constitution, the Crown is still the fountain +from which law and justice spring forth. Its prerogatives are in the +main the same as under the Tudors and the Stuarts; but the right of +the house of Brunswick to exercise them can only be deduced from the +convention of 1688. + +The great advantage therefore of the revolution, as I would explicitly +affirm, consists in that which was reckoned its reproach by many, and +its misfortune by more; that it broke the line of succession. No other +remedy could have been found, according to the temper and prejudices +of those times, against the unceasing conspiracy of power. But when +the very tenure of power was conditional, when the Crown, as we may +say, gave recognisances for its good behaviour, when any violent and +concerted aggressions on public liberty would have ruined those who +could only resist an inveterate faction by the arms which liberty put +in their hands, the several parts of the constitution were kept in +cohesion by a tie far stronger than statutes, that of a common +interest in its preservation. The attachment of James to popery, his +infatuation, his obstinacy, his pusillanimity, nay even the death of +the Duke of Gloucester, the life of the Prince of Wales, the +extraordinary permanence and fidelity of his party, were all the +destined means through which our present grandeur and liberty, our +dignity of thinking on matters of government, have been perfected. +Those liberal tenets, which at the aera of the revolution were +maintained but by one denomination of English party, and rather +perhaps on authority of not very good precedents in our history than +of sound general reasoning, became in the course of the next +generation almost equally the creed of the other, whose long exclusion +from government taught them to solicit the people's favour; and by the +time that Jacobitism was extinguished, had passed into received maxims +of English politics. None at least would care to call them in question +within the walls of parliament; nor have their opponents been of much +credit in the paths of literature. Yet, as since the extinction of the +house of Stuart's pretensions, and other events of the last half +century, we have seen those exploded doctrines of indefeasible +hereditary right revived under another name, and some have been +willing to misrepresent the transactions of the revolution and the act +of settlement as if they did not absolutely amount to a deposition of +the reigning sovereign, and an election of a new dynasty by the +representatives of the nation in parliament, it may be proper to state +precisely the several votes, and to point out the impossibility of +reconciling them to any gentler construction. + +_Proceedings of the convention._--The Lords spiritual and temporal, to +the number of about ninety, and an assembly of all who had sat in any +of King Charles's parliaments, with the lord mayor and fifty of the +common council, requested the Prince of Orange to take upon him the +administration after the king's second flight, and to issue writs for +a convention in the usual manner.[143] This was on the 26th of +December; and the convention met on the 22nd of January. Their first +care was to address the prince to take the administration of affairs +and disposal of the revenue into his hands, in order to give a kind of +parliamentary sanction to the power he already exercised. On the 28th +of January the Commons, after a debate in which the friends of the +late king made but a faint opposition, came to their great vote: That +King James II., having endeavoured to subvert the constitution of this +kingdom, by breaking the original contract between king and people, +and by the advice of jesuits and other wicked persons having violated +the fundamental laws, and having withdrawn himself out of the kingdom, +has abdicated the government, and that the throne is thereby vacant. +They resolved unanimously the next day, that it hath been found by +experience inconsistent with the safety and welfare of this protestant +kingdom to be governed by a popish prince.[144] This vote was a +remarkable triumph of the whig party, who had contended for the +exclusion bill; and, on account of that endeavour to establish a +principle which no one was now found to controvert, had been subjected +to all the insults and reproaches of the opposite faction. The Lords +agreed with equal unanimity to this vote; which, though it was +expressed only as an abstract proposition, led by a practical +inference to the whole change that the whigs had in view. But upon the +former resolution several important divisions took place. The first +question put, in order to save a nominal allegiance to the late king, +was, whether a regency with the administration of regal power under +the style of King James II. during the life of the said King James, be +the best and safest way to preserve the protestant religion and the +laws of this kingdom? This was supported both by those peers who +really meant to exclude the king from the enjoyment of power, such as +Nottingham, its great promoter, and by those who, like Clarendon, were +anxious for his return upon terms of security for their religion and +liberty. The motion was lost by fifty-one to forty-nine; and this +seems to have virtually decided, in the judgment of the house, that +James had lost the throne.[145] The Lords then resolved that there +was an original contract between the king and people, by fifty-five to +forty-six; a position that seems rather too theoretical, yet necessary +at that time, as denying the divine origin of monarchy, from which its +absolute and indefeasible authority had been plausibly derived. They +concurred, without much debate, in the rest of the Commons' vote; till +they came to the clause that he had abdicated the government, for +which they substituted the word "deserted." They next omitted the +final and most important clause, that the throne was thereby vacant, +by a majority of fifty-five to forty-one. This was owing to the party +of Lord Danby, who asserted a devolution of the Crown on the Princess +of Orange. It seemed to be tacitly understood by both sides that the +infant child was to be presumed spurious. This at least was a +necessary supposition for the tories, who sought in the idle rumours +of the time an excuse for abandoning his right. As to the whigs, +though they were active in discrediting this unfortunate boy's +legitimacy, their own broad principles of changing the line of +succession rendered it, in point of argument, a superfluous enquiry. +The tories, who had made little resistance to the vote of abdication, +when it was proposed in the Commons, recovered courage by this +difference between the two houses; and perhaps by observing the king's +party to be stronger out of doors than it had appeared to be, were +able to muster 151 voices against 282 in favour of agreeing with the +Lords in leaving out the clause about the vacancy of the throne.[146] +There was still, however, a far greater preponderance of the whigs in +one part of the convention, than of the tories in the other. In the +famous conference that ensued between committees of the two houses +upon these amendments, it was never pretended that the word +"abdication" was used in its ordinary sense, for a voluntary +resignation of the Crown. The Commons did not practise so pitiful a +subterfuge. Nor could the Lords explicitly maintain, whatever might be +the wishes of their managers, that the king was not expelled and +excluded as much by their own word "desertion" as by that which the +lower house had employed. Their own previous vote against a regency +was decisive upon this point.[147] But as abdication was a gentler +term than forfeiture, so desertion appeared a still softer method of +expressing the same idea. Their chief objection, however, to the +former word was that it led, or might seem to lead, to the vacancy of +the throne, against which their principal arguments were directed. +They contended that in our government there could be no interval or +vacancy, the heir's right being complete by a demise of the Crown; so +that it would at once render the monarchy elective, if any other +person were designated to the succession. The Commons did not deny +that the present case was one of election, though they refused to +allow that the monarchy was thus rendered perpetually elective. They +asked, supposing a right to descend upon the next heir, who was that +heir to inherit it; and gained one of their chief advantages by the +difficulty of evading this question. It was indeed evident that, if +the Lords should carry their amendments, an enquiry into the +legitimacy of the Prince of Wales could by no means be dispensed with. +Unless that could be disproved more satisfactorily than they had +reason to hope, they must come back to the inconveniences of a +regency, with the prospect of bequeathing interminable confusion to +their posterity. For, if the descendants of James should continue in +the Roman catholic religion, the nation might be placed in the +ridiculous situation of acknowledging a dynasty of exiled kings, whose +lawful prerogative would be withheld by another race of protestant +regents. It was indeed strange to apply the provisional substitution +of a regent in cases of infancy or imbecility of mind to a prince of +mature age, and full capacity for the exercise of power. Upon the +king's return to England, this delegated authority must cease of +itself; unless supported by votes of parliament as violent and +incompatible with the regular constitution as his deprivation of the +royal title, but far less secure for the subject, whom the statute of +Henry VII. would shelter in paying obedience to a king de facto; while +the fate of Sir Henry Vane was an awful proof that no other name could +give countenance to usurpation. A great part of the nation not thirty +years before had been compelled by acts of parliament[148] to declare +upon oath their abhorrence of that traitorous position, that arms +might be taken up by the king's authority against his person or those +commissioned by him, through the influence of those very tories or +loyalists who had now recourse to the identical distinction between +the king's natural and political capacity, for which the presbyterians +had incurred so many reproaches. + +In this conference, however, if the whigs had every advantage on the +solid grounds of expediency, or rather political necessity, the tories +were as much superior in the mere argument, either as it regarded the +common sense of words, or the principles of our constitutional law. +Even should we admit that an hereditary king is competent to abdicate +the throne in the name of all his posterity, this could only be intended +of a voluntary and formal cession, not such a constructive abandonment +of his right by misconduct as the Commons had imagined. The word +"forfeiture" might better have answered this purpose; but it had +seemed too great a violence on principles which it was more convenient +to undermine than to assault. Nor would even forfeiture bear out by +analogy the exclusion of an heir, whose right was not liable to be set +aside at the ancestor's pleasure. It was only by recurring to a kind +of paramount, and what I may call hyper-constitutional law, a mixture +of force and regard to the national good, which is the best sanction +of what is done in revolutions, that the vote of the Commons could be +defended. They proceeded not by the stated rules of the English +government, but the general rights of mankind. They looked not so much +to Magna Charta as the original compact of society, and rejected Coke +and Hale for Hooker and Harrington. + +The House of Lords, after this struggle against principles undoubtedly +very novel in the discussions of parliament, gave way to the strength +of circumstance and the steadiness of the Commons. They resolved not +to insist on their amendments to the original vote; and followed this +up by a resolution, that the Prince and Princess of Orange shall be +declared King and Queen of England, and all the dominions thereunto +belonging.[149] But the Commons with a noble patriotism delayed to +concur in this hasty settlement of the Crown, till they should have +completed the declaration of those fundamental rights and liberties +for the sake of which alone they had gone forward with this great +revolution.[150] That declaration, being at once an exposition of the +misgovernment which had compelled them to dethrone the late king, and +of the conditions upon which they elected his successors, was +incorporated in the final resolution to which both houses came on the +13th of February, extending the limitation of the Crown as far as the +state of affairs required: "That William and Mary, Prince and Princess +of Orange, be, and be declared King and Queen of England, France, and +Ireland, and the dominions thereunto belonging, to hold the crown and +dignity of the said kingdoms and dominions to them, the said prince +and princess, during their lives, and the life of the survivor of +them; and that the sole and full exercise of the regal power be only +in, and executed by, the said Prince of Orange, in the names of the +said prince and princess, during their joint lives; and after their +decease the said crown and royal dignity of the said kingdoms and +dominions to be to the heirs of the body of the said princess; for +default of such issue, to the Princess Anne of Denmark, and the heirs +of her body; and for default of such issue, to the heirs of the body +of the said Prince of Orange." + +Thus, to sum up the account of this extraordinary change in our +established monarchy, the convention pronounced, under the slight +disguise of a word unusual in the language of English law, that the +actual sovereign had forfeited his right to the nation's allegiance. +It swept away by the same vote the reversion of his posterity, and of +those who could claim the inheritance of the Crown. It declared that, +during an interval of nearly two months, there was no king of England; +the monarchy lying, as it were, in abeyance from the 23rd of December +to the 13th of February. It bestowed the Crown on William jointly with +his wife indeed, but so that her participation of the sovereignty +should be only in name.[151] It postponed the succession of the +Princess Anne during his life. Lastly, it made no provision for any +future devolution of the Crown in failure of issue from those to whom +it was thus limited, leaving that to the wisdom of future parliaments. +Yet only eight years before, nay much less, a large part of the nation +had loudly proclaimed the incompetency of a full parliament, with a +lawful king at its head, to alter the lineal course of succession. No +whig had then openly professed the doctrine, that not only a king, but +an entire royal family, might be set aside for public convenience. The +notion of an original contract was denounced as a republican chimera. +The deposing of kings was branded as the worst birth of popery and +fanaticism. If other revolutions have been more extensive in their +effect on the established government, few perhaps have displayed a +more rapid transition of public opinion. For it cannot be reasonably +doubted that the majority of the nation went along with the vote of +their representatives. Such was the termination of that contest, which +the house of Stuart had obstinately maintained against the liberties, +and of late, against the religion of England; or rather, of that far +more ancient controversy between the Crown and the people which had +never been wholly at rest since the reign of John. During this long +period, the balance, except in a few irregular intervals, had been +swayed in favour of the Crown; and, though the government of England +was always a monarchy limited by law, though it always, or at least +since the admission of the commons into the legislature, partook of +the three simple forms, yet the character of a monarchy was evidently +prevalent over the other parts of the constitution. But, since the +revolution of 1688, and particularly from thence to the death of +George II., it seems equally just to say, that the predominating +character has been aristocratical; the prerogative being in some +respects too limited, and in others too little capable of effectual +exercise, to counterbalance the hereditary peerage, and that class of +great territorial proprietors, who, in a political division, are to be +reckoned among the proper aristocracy of the kingdom. This, however, +will be more fully explained in the two succeeding chapters, which are +to terminate the present work. + +FOOTNOTES: + +[75] Fox, Appendix, p. 8. + +[76] "The legal method," says Burnet, "was to have made entries, and +to have taken bonds for those duties to be paid when the parliament +should meet and renew the grant." Mr. Onslow remarks on this, that he +should have said, the least illegal and the only justifiable method. +To which the Oxford editor subjoins that it was the proposal of +Lord-Keeper North, while the other, which was adopted, was suggested +by Jefferies. This is a mistake. North's proposal was to collect the +duties under the proclamation, but to keep them apart from the other +revenues in the exchequer until the next session of parliament. There +was surely little difference in point of illegality between this and +the course adopted. It was alleged that the merchants, who had paid +duty, would be injured by a temporary importation duty free; and +certainly it was inconvenient to make the revenue dependent on such a +contingency as the demise of the Crown. But this neither justifies the +proclamation, nor the disgraceful acquiescence of the next parliament +in it. + +The king was thanked in several addresses for directing the customs to +be levied, particularly in one from the benchers and barristers of the +Middle Temple. _London Gazette_, March 11. This was drawn by Sir +Bartholomew Shower, and presented by Sir Humphrey Mackworth. _Life of +James_, vol. ii. p. 17. The former was active as a lawyer in all the +worst measures of these two reigns. Yet, after the revolution, they +both became tory patriots, and jealous assertors of freedom against +the government of William III. Barillon, however, takes notice that +this illegal continuance of the revenue produced much discontent. +Fox's Appendix, 39; and Rochester told him that North and Halifax +would have urged the king to call a parliament, in order to settle the +revenue on a lawful basis, if that resolution had not been taken by +himself. _Id._ p. 20. The king thought it necessary to apologise to +Barillon for convoking parliament. _Id._ p. 18; Dalrymple, p. 100. + +[77] Dalrymple, p. 142. The king alludes to this possibility of a +limited grant with much resentment and threatening, in his speech on +opening the session. + +[78] Fox, Appendix, p. 93; Lonsdale, p. 5. + +[79] For this curious piece of parliamentary inconsistency, see +Reresby's _Memoirs_, p. 113, and Barillon in the Appendix to Fox, p. +95. "Il s'est passe avant hier une chose de grande consequence dans la +chambre basse: il fut propose le matin que la chambre se mettoit en +comite l'apres diner pour considerer la harangue du roy sur l'affaire +de la religion, et savoir ce qui devoit etre entendu par le terme _de +religion protestante_. La resolution fut prise unanimement, et sans +contradiction, de faire une adresse au roy pour le prier de faire une +proclamation pour l'execution des loix contre tous les nonconformistes +generalement, c'est-a-dire, contre tous ceux qui ne sont pas +ouvertement de l'eglise Anglicane; cela enferme les presbiteriens et +tous les sectaires, aussi bien que les catholiques Romains. La malice +de cette resolution fut aussitot reconnu du roy d'Angleterre, et de +ses ministres; les principaux de la chambre basse furent mandes, et +ceux que sa majeste Britannique croit etre dans ses interets; il leur +fit une reprimande severe de s'etre laisses seduire et entrainer a une +resolution si dangereuse et si peu admissible. Il leur declara que, si +l'on persistoit a lui faire une pareille adresse, il repondroit a la +chambre basse en termes si decisifs et si fermes qu'on ne retourneroit +pas a lui faire une pareille adresse. La maniere dont sa majeste +Britannique s'explique produisit son effet hier matin; et la chambre +basse rejeta tout d'une voix ce que avoit ete resolu en comite le jour +auparavant." + +The only man who behaved with distinguished spirit in this wretched +parliament was one in whose political life there is little else to +praise, Sir Edward Seymour. He opposed the grant of the revenues for +life, and spoke strongly against the illegal practices in the +elections. Fox, 90, 93. + +[80] Fox, Appendix, p. 156. "Provided always, and be it further +enacted, that if any peer of this realm, or member of the House of +Commons, shall move or propose in either house of parliament the +disherison of the rightful and true heir of the Crown, or to alter or +change the descent or succession of the Crown in the right line; such +offence shall be deemed and adjudged high treason, and every person +being indicted and convicted of such treason, shall be proceeded +against, and shall suffer and forfeit as in other cases of high +treason mentioned in this act." + +See what Lord Lonsdale says (p. 8) of this bill, which he, among +others, contrived to weaken by provisoes, so that it was given up. + +[81] _Parl. Hist._ 1372. The king's speech had evidently shown that +the supply was only demanded for this purpose. The speaker, on +presenting the bill for settling the revenue in the former session, +claimed it as a merit that they had not inserted any appropriating +clauses. _Parl. Hist._ 1359. + +[82] Reresby, p. 110; Barillon, in Fox's Appendix, pp. 93, 127, etc. +Le feu roi d'Angleterre et celui-ci m'ont souvent dit, qu'un +gouvernement ne peut subsister avec une telle loi. Dalrymple, p. 171. + +[83] This opinion has been well supported by Mr. Serjeant Heywood +(_Vindication of Mr. Fox's History_, p. 154). In some few of +Barillon's letters to the King of France, he speaks of James's +intention etablir la religion catholique; but these perhaps might be +explained by a far greater number of passages, where he says only +etablir le libre exercice de la religion catholique, and by the +general tenor of his correspondence. But though the primary object was +toleration, I have no doubt but that they conceived this was to end in +establishment. See what Barillon says (p. 84); though the legal +reasoning is false, as might be expected from a foreigner. It must at +all events be admitted that the conduct of the king after the +formation of the catholic junto in 1686, demonstrates an intention of +overthrowing the Anglican establishment. + +[84] "Il [le roy] me repondit a ce que je venois de dire, que je +connoissois le fond de ses intentions pour l'etablissement de la +religion catholique; qu'il n'esperoit en venir a bout que par +l'assistance de V. M.; que je voyois qu'il venoit de donner des +emplois dans ses troupes aux catholiques aussi bien qu'aux protestans; +que cette egalite fachoit beaucoup de gens, mais qu'il n'avoit pas +laisse passer une occasion si importante sans s'en prevaloir; qu'il +feroit de meme a l'egard des choses practicables, et que je voyois +plus clair sur cela dans ses desseins que ses propres ministres, s'en +etant souvent ouvert avec moi sans reserve."--P. 104. In a second +conversation immediately afterwards, the king repeated, "que je +connoissois le fond de ses desseins, et que je pouvois repondre que +tout son but etoit d'etablir la religion catholique; qu'il ne perdroit +aucune occasion de la faire ... que peu a peu il va a son but, et que +ce qu'il fait presentement emporte necessairement l'exercice libre de +la religion catholique, qui se trouvera etabli avant qu'un acte de +parlement l'autorise; que je connoissois assez l'Angleterre pour +savoir que la possibilite d'avoir des emplois et des charges fera plus +de catholiques que la permission de dire des messes publiques; que +cependant il s'attendoit que V. M. ne l'abandonneroit pas," etc. P. +106. Sunderland entered on the same subject, saying, "Je ne sais pas +si l'on voit en France les choses comme elles sont ici; mais je defie +ceux qui les voyent de pres de ne pas connoitre que le roy mon maitre +n'a rien dans le coeur si avant que l'envie d'etablir la religion +catholique; qu'il ne peut meme, selon le bon sens et la droite raison, +avoir d'autre but; que sans cela il ne sera jamais en surete, et sera +toujours expose au zele indiscret de ceux qui echaufferont les peuples +contre la catholicite, tant qu'elle ne sera pas _plus_ pleinement +etablie; il y a une autre chose certaine, c'est que ce plan la ne peut +reussir que par un concert et une liaison etroite avec le roi votre +maitre; c'est un projet qui ne peut convenir qu'a lui, ni reussir que +par lui. Toutes les autres puissances s'y opposeront ouvertement, ou +le traverseront sous main. On sait bien que cela ne convient point au +Prince d'Orange; mais s'il ne sera pas en etat de l'empecher si on +veut se conduire en France comme il est necessaire, c'est-a-dire +menager l'amitie du roy d'Angleterre, et le contenir dans son projet. +Je vois clairement l'apprehension que beaucoup de gens ont d'une +liaison avec la France, et les efforts qu'on fait pour l'affoiblir; +mais cela ne sera au pouvoir de personne, si on n'en a pas envie ce +France; c'est sur quoi il faut que vous vouz expliquiez nettement, que +vous fassiez connoitre que le roi votre maitre veut aider de bonne foi +le roi d'Angleterre a etablir fermement la religion catholique." + +The word _plus_ in the above passage is not in Dalrymple's extract +from this letter. Vol. ii. part ii. pp. 174, 187. Yet for omitting +this word Serjeant Heywood (not having attended to Dalrymple), +censures Mr. Rose as if it had been done purposely. _Vindic. of Fox_, +p. 154. But this is not quite judicious or equitable, since another +critic might suggest that it was purposely interpolated. No one of +common candour would suspect this of Mr. Fox; but his copyist, I +presume, was not infallible. The word _plus_ is evidently incorrect. +The catholic religion was not established at all in any possible +sense; what room could there be for the comparative? M. Mazure, who +has more lately perused the letters of Barillon at Paris, prints the +passage without _plus_. _Hist. de la Revol._ ii. 36. Certainly the +whole conversation here ascribed to Sunderland points at something far +beyond the free exercise of the Roman catholic religion. + +[85] It is curious to remark that both James and Louis considered the +re-establishment of the catholic religion and of the royal authority +as closely connected, and parts of one great system. Barillon in Fox, +Append. 19, 57; Mazure, i. 346. Mr. Fox maintains (_Hist._ p. 102) +that the great object of the former was absolute power rather than the +interests of popery. Doubtless if James had been a protestant, his +encroachments on the rights of his subjects would not have been less +than they were, though not exactly of the same nature; but the main +object of his reign can hardly be denied to have been either the full +toleration, or the national establishment of the church of Rome. Mr. +Fox's remark must, at all events, be limited to the year 1685. + +[86] Fox, Appendix, p. 33; Ralph, 869. The prosecution of Baxter for +what was called reflecting on the bishops, is an instance of this. +_State Trials_, ii. 494. Notwithstanding James's affected zeal for +toleration, he did not scruple to congratulate Louis on the success of +his very different mode of converting heretics. Yet I rather believe +him to have been really averse to persecution; though with true Stuart +insincerity he chose to flatter his patron. Dalrymple, p. 177. A book +by Claude, published in Holland, entitled _Plaintes des Protestans +cruellement opprimes dans le royaume de France_, was ordered to be +burned by the hangman, on the complaint of the French ambassador, and +the translator and printer to be enquired after and prosecuted. _Lond. +Gazette_, May 8, 1686. Jefferies objected to this in council as +unusual; but the king was determined to gratify his most christian +brother. Mazure, ii. 122. It is said also that one of the reasons for +the disgrace of Lord Halifax was his speaking warmly about the +revocation of the edict of Nantes. _Id._ p. 55. Yet James sometimes +blamed this himself, so as to displease Louis. _Id._ p. 56. In fact, +it very much tended to obstruct his own views for the establishment of +a religion which had just shown itself in so odious a form. For this +reason, though a brief was read in churches for the sufferers, special +directions were given that there should be no sermon. It is even said +that he took on himself the distribution of the money collected for +the refugees, in order to stop the subscription; or at least that his +interference had that effect. The enthusiasm for the French +protestants was such that single persons subscribed 500 or 1000 +pounds; which, relatively to the opulence of the kingdom, almost +equals any munificence of this age. _Id._ p. 123. + +[87] It is well known that the House of Commons, in 1685, would not +pass the bill for reversing Lord Stafford's attainder, against which a +few peers had entered a very spirited protest. _Parl. Hist._ 1361. +Barillon says, this was "parce que dans le preambule il y a des mots +inseres qui semblent favoriser la religion catholique; cela seul a +retarde la rehabilitation du Comte de Stafford dont tous sont d'accord +a l'egard du fond." Fox, App. p. 110. But there was another reason +which might have weight. Stafford had been convicted on the evidence, +not only of Oates, who had been lately found guilty of perjury, but of +several other witnesses, especially Dugdale and Turberville. And these +men had been brought forward by the government against Lord +Shaftesbury and College, the latter of whom had been hanged on their +testimony. The reversal of Lord Stafford's attainder, just as we now +think it, would have been a disgrace to these Crown prosecutions; and +a conscientious tory would be loth to vote for it. + +[88] "In all the disputes relating to that mystery before the civil +wars, the church of England protestant writers owned the real +presence, and only abstracted from the _modus_ or manner of Christ's +body being present in the eucharist, and therefore durst not say but +it might be there by transubstantiation as well as by any other +way.... It was only of late years that such principles have crept into +the church of England; which, having been blown into the parliament +house, had raised continual tumults about religion ever since. Those +unlearned and fanatical notions were never heard of till Doctor +Stillingfleet's late invention of them, by which he exposed himself to +the lash, not only of the Roman catholics, but to that of many of the +church of England controvertists too." _Life of James_, ii. 146. + +[89] See _London Gazettes_, 1685, _passim_: the most remarkable are +inserted by Ralph and Kennet. I am sure the addresses which we have +witnessed in this age among a neighbouring people are not on the whole +more fulsome and disgraceful. Addresses, however, of all descriptions, +as we well know, are generally the composition of some zealous +individual, whose expressions are not to be taken as entirely those of +the subscribers. Still these are sufficient to manifest the general +spirit of the times. + +The king's popularity at his accession, which all contemporary writers +attest, is strongly expressed by Lord Lonsdale. "The great interest he +had in his brother, so that all applications to the king seemed to +succeed only as he favoured them, and the general opinion of him to be +a prince steady above all others to his word, made him at that time +the most popular prince that had been known in England for a long +time. And from men's attempting to exclude him, they, at this juncture +of time, made him their darling; no more was his religion terrible; +his magnanimous courage, and the hardships he had undergone, were the +discourse of all men. And some reports of a misunderstanding betwixt +the French king and him, occasioned originally by the marriage of the +Lady Mary to the Prince of Orange, industriously spread abroad to +amuse the ignorant, put men in hopes of what they had long wished; +that, by a conjunction of Holland and Spain, etc., we might have been +able to reduce France to the terms of the Pyrenean treaty, which was +now become the terror of Christendom, we never having had a prince for +many ages that had so great a reputation for experience and a martial +spirit."--P. 3. This last sentence is a truly amusing contrast to the +real truth; James having been, in his brother's reign, the most +obsequious and unhesitating servant of the French king. + +[90] "On voit qu'insensiblement les Catholiques auront les armes a la +main; c'est un etat bien different de l'oppression ou ils etoient, et +dont les protestans zeles recoivent une grande mortification; ils +voyent bien que le roy d'Angleterre fera le reste quand il le pourra. +La levee des troupes, qui seront bientot complettes, fait juger que le +roy d'Angleterre veut etre en etat de se faire obeir, et de n'etre pas +gene par les loix qui se trouveront contraires a ce qu'il veut +etablir." Barillon in Fox's Appendix, 111. "Il me paroit (he says, +June 25), que le roy d'Angleterre a ete fort aise d'avoir une pretexte +de lever des troupes, et qu'il croit que l'entreprise de M. le duc de +Monmouth ne servira qu'a le rendre plus maitre de sons pays." And on +July 30: "le projet du roy d'Angleterre est d'abolir entierement les +milices, dont il a reconnu l'inutilite et le danger en cette derniere +occasion; et de faire, s'il est possible, que le parlement etablisse +le fond destine pour les milices a l'entretien des troupes reglees. +Tout cela change entierement l'etat de ce pays ici, et met les Anglois +dans une condition bien differente de celle ou ils ont ete jusques a +present. Ils le connoissent, et voyent bien qu'un roy de differente +religion que celle du pays, et qui se trouve arme, ne renoncera pas +aisement aux avantages que lui donne la defaite des rebelles, et les +troupes qu'il a sur pied." And afterwards: "Le roi d'Angleterre m'a +dit que quoiqu'il arrive, il conservera les troupes sur pied, quand +meme le parlement ne lui donneroit pour les entretenir. Il connoit +bien que le parlement verra mal volontiers cet etablissement; mais il +veut etre assure du dedans de son pays, et il croit ne le pouvoir etre +sans cela." Dalrymple, 169, 170. + +[91] Fox's App. 69; Dalrymple, 153. + +[92] It had been the intention of Sunderland and the others to +dissolve parliament, as soon as the revenue for life should be +settled, and to rely in future on the assistance of France. Fox's App. +59, 60; Mazure, i. 432. But this was prevented, partly by the sudden +invasion of Monmouth, which made a new session necessary, and gave +hopes of a large supply for the army; and partly by the unwillingness +of the King of France to advance as much money as the English +government wanted. In fact, the plan of continual prorogations +answered as well. + +[93] Journals, Nov. 14. Barillon says that the king answered this +humble address, "avec des marques de fierte et de colere sur le +visage, qui faisoit assez connoitre ses sentimens." Dalrymple, 172. +See too his letter in Fox, 139. + +A motion was made to ask the Lords' concurrence in this address, +which, according to the journals, was lost by 212 to 138. In the _Life +of James_, ii. 55, it is said that it was carried against the motion +by only four voices; and this I find confirmed by a manuscript account +of the debates (Sloane MSS. 1470), which gives the numbers 212 to 208. +The journal probably is mis-printed, as the court and country parties +were very equal. It is said in this manuscript, that those who opposed +the address, opposed also the motion for requesting the Lords' +concurrence in it; but James represents it otherwise, as a device of +the court to quash the proceeding. + +[94] Coke, 12 Rep. 18. + +[95] Vaughan's Reports; Thomas _v._ Sorrell, 333. + +[96] Burnet and others. This hardly appears by Northey's argument. + +[97] _State Trials_, xi. 1165-1280; 2 Shower's _Reports_, 475. + +[98] The dissentient judge was Street; and Powell doubted. The king +had privately secured this opinion of the bench in his favour before +the action was brought. _Life of James_, ii. 79. + +[99] _State Trials_, xi. 1132 _et seq._ The members of the commission +were the primate Sancroft (who never sat), Crew and Sprat, Bishops of +Durham and Rochester the chancellor Jefferies, the Earls of Rochester +and Sunderland, and Chief-Justice Herbert. Three were to form a +quorum, but the chancellor necessarily to be one. Ralph, 929. The Earl +of Mulgrave was introduced afterwards. + +[100] Mazure, ii. 130. + +[101] Henry Earl of Clarendon's papers, ii. 278. In Gutch's +_Collectanea Curiosa_, vol. i. p. 287, we find not only this license +to Massey, but one to Obadiah Walker, master of University College, +and to two fellows of the same, and one of Brazen-nose College, to +absent themselves from church, and not to take the oaths of supremacy +and allegiance, or do any other thing to which, by the laws and +statutes of the realm, or those of the college, they are obliged. +There is also, in the same book, a dispensation for one Sclater, +curate of Putney, and rector of Esher, from using the common prayer, +etc., etc. _Id._ p. 290. These are in May 1686, and subscribed by +Powis, the solicitor-general. The attorney-general, Sawyer, had +refused; as we learn from Reresby, p. 133, the only contemporary +writer, perhaps, who mentions this very remarkable aggression on the +established church. + +[102] The catholic lords, according to Barillon, had represented to +the king, that nothing could be done with parliament so long as the +treasurer caballed against the designs of his majesty. James promised +to dismiss him if he did not change his religion. Mazure, ii. 170. The +queen had previously been rendered his enemy by the arts of +Sunderland, who persuaded her that Lord and Lady Rochester had +favoured the king's intimacy with the Countess of Dorchester in order +to thwart the popish intrigue. _Id._ 149. "On voit," says Barillon, on +the treasurer's dismissal, "que la cabale catholique a entierement +prevalu. On s'attendoit depuis quelque temps a ce qui est arrive au +comte de Rochester; mais l'execution fait encore une nouvelle +impression sur les esprits."--P. 181. + +[103] _Life of James_, 74. Barillon frequently mentions this cabal, as +having in effect the whole conduct of affairs in their hands. +Sunderland belonged to them; but Jefferies, being reckoned on the +protestant side, had, I believe, very little influence for at least +the two latter years of the king's reign. "Les affaires de ce +pays-ci," says Bonrepos, in 1686, "ne roulent a present que sur la +religion. Le roi est absolument gouverne par les catholiques. My Lord +Sunderland ne se maintient que par ceux-ci, et par son devouement a +faire tout ce qu'il croit etre agreable sur ce point. Il a le secret +des affaires de Rome." Mazure, ii. 124. "On feroit ici," says +Barillon, the same year, "ce que on fait en France" [that is, I +suppose, dragonner et fusilier les heretiques] "si l'on pouvoit +esperer de reussir."--P. 127. + +[104] Rochester makes so very bad a figure in all Barillon's +correspondence, that there really seems no want of candour in this +supposition. He was evidently the most active co-operator in the +connection of both the brothers with France, and seems to have had as +few compunctious visitings, where the church of England was not +concerned, as Sunderland himself. Godolphin was too much implicated, +at least by acquiescence, in the counsels of this reign; yet we find +him suspected of not wishing "se passer entierement de parlement, et a +rompre nettement avec le prince d'Orange." Fox, Append, p. 60. + +If Rochester had gone over to the Romanists, many, probably, would +have followed: on the other hand, his steadiness retained the +wavering. It was one of the first great disappointments with which the +king met. But his dismissal from the treasury created a sensible +alarm. Dalrymple, 179. + +[105] Lord Dartmouth wrote to say that Fletcher told him there were +good grounds to suspect that the prince, underhand, encouraged the +expedition, with design to ruin the Duke of Monmouth; and this +Dalrymple believes. P. 136. It is needless to observe, that such +subtle and hazardous policy was totally out of William's character; +nor is there much more reason to believe what is insinuated by James +himself (Macpherson's _Extracts_, p. 144; _Life of James_, ii. 34), +that Sunderland had been in secret correspondence with Monmouth; +unless indeed it were, as seems hinted in the latter work, with the +king's knowledge. + +[106] The number of persons who suffered the sentence of the law, in +the famous western assize of Jefferies, has been differently stated; +but according to a list in the Harleian Collection, n. 4689, it +appears to be as follows: at Winchester, one (Mrs. Lisle) executed; at +Salisbury, none; at Dorchester, 74 executed, 171 transported; at +Exeter, 14 executed, 7 transported; at Taunton, 144 executed, 284 +transported; at Wells, 97 executed, 393 transported. In all, 330 +executed, 855 transported; besides many that were left in custody for +want of evidence. It may be observed, that the prisoners sentenced to +transportation appear to have been made over to some gentlemen of +interest at court; among others, to Sir Christopher Musgrave, who did +not blush to beg the grant of their unfortunate countrymen, to be sold +as slaves in the colonies. + +The apologists of James II. have endeavoured to lay the entire blame +of these cruelties on Jefferies, and to represent the king as ignorant +of them. Roger North tells a story of his brother's interference, +which is plainly contradicted by known dates, and the falsehood of +which throws just suspicion on his numerous anecdotes. See _State +Trials_, xi. 303. But the king speaks with apparent approbation of +what he calls Jefferies's campaign, in writing to the Prince of Orange +(Dalrymple, 165); and I have heard that there are extant additional +proofs of his perfect acquaintance with the details of those assizes; +nor, indeed, can he be supposed ignorant of them. Jefferies himself, +before his death, declared that he had not been half bloody enough for +him by whom he was employed. Burnet, 651 (note to Oxford edition, vol. +iii.). The king, or his biographer in his behalf, makes a very awkward +apology for the execution of Major Holmes, which is shown by himself +to have been a gross breach of faith. _Life of James_, ii. 43. + +It is unnecessary to dwell on what may be found in every history: the +trials of Mrs. Lisle, Mrs. Gaunt, and Alderman Cornish; the former +before Jefferies, the two latter before Jones, his successor as chief +justice of K. B., a judge nearly as infamous as the former, though not +altogether so brutal. Both Mrs. Lisle's and Cornish's convictions were +without evidence, and consequently were reversed after the revolution. +_State Trials_, vol. xi. + +[107] Several proofs of this appear in the correspondence of Barillon. +Fox, 135; Mazure, ii. 22. The nuncio, M. d'Adda, was a moderate man, +and united with the moderate catholic peers, Bellasis, Arundel, and +Powis. _Id._ 127. This party urged the king to keep on good terms with +the Prince of Orange, and to give way about the test. _Id._ 184, 255. +They were disgusted at Father Petre's introduction into the privy +council; 308, 353. But it has ever been the misfortune of that +respectable body to suffer unjustly for the follies of a few. Barillon +admits, very early in James's reign, that many of them disliked the +arbitrary proceedings of the court; "ils pretendent etre bons Anglois, +c'est-a-dire, ne pas desirer que le roi d'Angleterre ote a la nation +ses privileges et ses libertes." Mazure, i. 404. + +William openly declared his willingness to concur in taking off the +penal laws, provided the test might remain. Burnet, 694; Dalrymple, +184; Mazure, ii. 216, 250, 346. James replied that he must have all or +nothing. _Id._ 353. + +[108] I do not know that this intrigue has been brought to light +before the recent valuable publication of M. Mazure, certainly not +with such full evidence. See i. 417; ii. 128, 160, 165, 167, 182, 188, +192. Barillon says to his master in one place: "C'est une matiere fort +delicate a traiter. Je sais pourtant qu'on en parle au roi +d'Angleterre; et qu'avec le temps on ne desespere pas de trouver des +moyens pour faire passer la couronne sur la tete d'un heritier +catholique. Il faut pour cela venir a bout de beaucoup des choses qui +ne sont encore que commencees." + +[109] Burnet, Dalrymple, Mazure. + +[110] The correspondence began by an affectedly obscure letter of Lady +Sunderland to the Prince of Orange, dated March 7, 1687. Dalrymple, +187. The meaning, however, cannot be misunderstood. Sunderland himself +sent a short letter of compliment by Dykvelt, May 28, referring to +what that envoy had to communicate. Churchill, Nottingham, Rochester, +Devonshire, and others, wrote also by Dykvelt. Halifax was in +correspondence at the end of 1686. + +[111] Sunderland does not appear, by the extracts from Barillon's +letters published by M. Mazure, to have been the adviser of the king's +most injudicious measures. He was united with the queen, who had more +moderation than her husband. It is said by Barillon that both he and +Petre were against the prosecution of the bishops, ii. 448. The king +himself ascribes this step to Jefferies, and seems to glance also at +Sunderland as its adviser. _Life of James_, ii. 156. He speaks more +explicitly as to Jefferies in Macpherson's _Extracts_, 151. Yet Lord +Clarendon's _Diary_, ii. 49, tends to acquit Jefferies. Probably the +king had nobody to blame but himself. One cause of Sunderland's +continuance in the apparent support of a policy which he knew to be +destructive was his poverty. He was in the pay of France, and even +importunate for its money. Mazure, 372; Dalrymple, 270 _et post_. +Louis only gave him half what he demanded. Without the blindest +submission to the king, he was every moment falling; and this drove +him in to a step as injudicious as it was unprincipled, his pretended +change of religion, which was not publicly made till June 1688, though +he had been privately reconciled, it is said (Mazure, ii. 463) more +than a year before by Father Petre. + +[112] "This defection of those his majesty had hitherto put the +greatest confidence in [Clarendon and Rochester], and the sullen +disposition of the church of England party in general, made him think +it necessary to reconcile another; and yet he hoped to do it in such a +manner as not to disgust quite the church-man neither." _Life of +James_, ii. 102. + +[113] _London Gazette_, March 18, 1687; Ralph, 945. + +[114] Ralph, 943; Mazure, ii. 207. + +[115] _London Gazette_, June 9, 1687. Shower had been knighted a +little before, on presenting, as recorder of London, an address from +the grand jury of Middlesex, thanking the king for his declaration. +_Id._ May 12. + +[116] _London Gazette_ of 1687 and 1688, _passim_; Ralph, 946, 368. +These addresses grew more ardent after the queen's pregnancy became +known. They were renewed of course, after the birth of the Prince of +Wales. But scarce any appear after the expected invasion was +announced. The Tories (to whom add the dissenters) seem to have thrown +off the mask at once, and deserted the king whom they had so grossly +flattered, as instantaneously as parasites on the stage desert their +patron on the first tidings of his ruin. + +The dissenters have been a little ashamed of their compliance with the +declaration, and of their silence in the popish controversy during +this reign. Neal, 755, 768; and see _Biogr. Brit._ art. Alsop. The best +excuses are, that they had been so harassed that it was not in human +nature to refuse a mitigation of suffering on almost any terms; that +they were by no means unanimous in their transitory support of the +court; and that they gladly embraced the first offers of an equal +indulgence held out to them by the church. + +[117] "The king now finding that nothing which had the least +appearance of novelty, though never so well warranted by the +prerogative, would go down with the people, unless it had the +parliamentary stamp on it, resolved to try if he could get the penal +laws and test taken off by that authority." _Life of James_, ii. 134. +But it seems by M. Mazure's authorities, that neither the king nor +Lord Sunderland wished to convoke a parliament, which was pressed +forward by the eager catholics, ii. 399. + +[118] _Life of James_, p. 139. + +[119] Ralph, 965, 966. The object was to let in the dissenters. This +was evidently a desperate game: James had ever mortally hated the +sectaries as enemies to monarchy; and they were irreconcilably adverse +to all his schemes. + +[120] Burnet; _Life of James_, 169; D'Oyly's _Life of Sancroft_, i. +326. Lord Halifax, as is supposed, published a letter of advice to the +dissenters, warning them against a coalition with the court, and +promising all indulgence from the church. Ralph, 950; _Somers Tracts_, +viii. 50. + +[121] Ralph, 967; Lonsdale, p. 15. "It is to be observed," says the +author of this memoir, "that most part of the offices in the nation, +as justices of the peace, deputy-lieutenants, mayors, aldermen, and +freemen of towns, are filled with Roman catholics and dissenters, +after having suffered as many regulations as were necessary for that +purpose. And thus stands the state of this nation in this month of +September 1688."--P. 34. Notice is given in the _London Gazette_ for +December 11, 1687, that the lists of justices and deputy-lieutenants +would be revised. + +[122] _Life of James_, 183. + +[123] Mazure, ii. 302. + +[124] The reader will find almost everything relative to the subject +in that incomparable repertory, the _State Trials_, xii. 1; also some +notes in the Oxford edition of Burnet. + +[125] Parker's _Reasons for Abrogating the Test_ are written in such a +tone as to make his readiness to abandon the protestant side very +manifest, even if the common anecdotes of him should be exaggerated. + +[126] It seems, however, confirmed by Mazure, ii. 390, with the +addition, that Petre, like a second Wolsey, aspired also to be +chancellor. The pope, however, would not make him a bishop, against +the rules of the order of jesuits to which he belonged. _Id._ 241. +James then tried, through Lord Castlemain, to get him a cardinal's +hat, but with as little success. + +[127] "Above twenty years together," says Sir Roger L'Estrange, +perhaps himself a disguised catholic, in his reply to the reasons of +the clergy of the diocese of Oxford against petitioning (_Somers +Tracts_, viii. 45), "without any regard to the nobility, gentry, and +commonalty, our clergy have been publishing to the world that the king +can do greater things than are done in his declaration; but now the +scene is altered, and they are become more concerned to maintain their +reputation even with the commonalty than with the king." See also in +the same volume, p. 19. "A remonstrance from the church of England to +both houses of parliament," 1685; and p. 145, "A new test of the +church of England's loyalty;" both, especially the latter, bitterly +reproaching her members for their apostacy from former professions. + +[128] Ralph, 982. + +[129] See _State Trials_, xii. 183; D'Oyly's _Life of Sancroft_, i. +250. + +[130] Fox, App. 29; Dalrymple, 107; Mazure, i. 396, 433. + +[131] Several proofs of this occur in the course of M. Mazure's work. +When the Dutch ambassador, Van Citers, showed him a paper, probably +forged to exasperate him, but purporting to be written by some +catholics, wherein it was said that it would be better for the people +to be vassals of France than slaves of the devil, he burst out into +rage. "Jamais! non, jamais! je ne ferai rien qui me puisse mettre au +dessous des rois de France et d'Espagne. Vassal, vassal de la France!" +s'ecria-t-il avec emportement. "Monsieur! si le parlement avoit voulu, +s'il vouloit encore, j'aurois porte, je porterois encore la monarchie +a un de consideration qu'elle n'a jamais eu sous aucune des rois mes +predecesseurs, et votre etat y trouveroit peut-etre sa propre +securite.'" Vol. ii. 165. Sunderland said to Barillon, "Le roi +d'Angleterre se reproche de ne pas etre en Europe tout ce qu'il devoit +etre; et souvent il se plaint que le roi votre maitre n'a pas pour lui +assez de consideration." _Id._ 313. On the other hand, Louis was much +mortified that James made so few applications for his aid. His hope +seems to have been that by means of French troops, or troops at least +in his pay, he should get a footing in England; and this was what the +other was too proud and jealous to permit. "Comme le roi," he said, in +1687, "ne doute pas de mon affection et du desir que j'ai de voir la +religion catholique bien etablie en Angleterre, il faut croire qu'il +se trouve assez de force et d'autorite pour executer ses desseins, +puis-qu'il n'a pas recours a moi."--P. 258; also 174, 225, 320. + +[132] James affected the same ceremonial as the King of France, and +received the latter's ambassador sitting and covered. Louis only said, +smiling, "Le roi mon frere est fier, mais il aime assez les pistoles +de France." Mazure, i. 423. A more extraordinary trait of James's +pride is mentioned by Dangeau, whom I quote from the _Quarterly +Review_, xix. 470. After his retirement to St. Germains, he wore +violets in court mourning; which, by etiquette, was confined to the +kings of France. The courtiers were a little astonished to see _solem +geminum_, though not at a loss where to worship. Louis, of course, had +too much magnanimity to express resentment. But what a picture of +littleness of spirit does this exhibit in a wretched pauper, who could +only escape by the most contemptible insignificance the charge of most +ungrateful insolence! + +[133] Mazure, iii. 50. James was so much out of humour at D'Avaux's +interference, that he asked his confidents, "if the King of France +thought he could treat him like the cardinal of Furstenburg," a +creature of Louis XIV. whom he had set up for the electorate of +Cologne. _Id._ 69. He was in short so much displeased with his own +ambassador at the Hague, Skelton, for giving into his declaration of +D'Avaux, that he not only recalled but sent him to the Tower. Burnet +is therefore mistaken (p. 768) in believing that there was actually an +alliance, though it was very natural that he should give credit to +what an ambassador asserted in a matter of such importance. In fact, a +treaty was signed between James and Louis, Sept. 13, by which some +French ships were to be under the former's orders. Mazure, iii. 67. + +[134] Louis continued to find money, though despising James and +disgusted with him, probably with a view to his own grand interests. +He should, nevertheless, have declared war against Holland in October, +which must have put a stop to the armament. But he had discovered that +James with extreme meanness had privately offered, about the end of +September, to join the alliance against him as the only resource. This +wretched action is first brought to light by M. Mazure, iii. 104. He +excused himself to the King of France by an assurance that he was not +acting sincerely towards Holland. Louis, though he gave up his +intention of declaring war, behaved with great magnanimity and +compassion towards the falling bigot. + +[135] Halifax all along discouraged the invasion, pointing out that +the king made no progress in his schemes. Dalrymple, _passim_. +Nottingham said he would keep the secret, but could not be a party to +a treasonable undertaking. _Id._ 228; Burnet, 764; and wrote as late +as July to advise delay and caution. Notwithstanding the splendid +success of the opposite counsels, it would be judging too servilely by +the event not to admit that they were tremendously hazardous. + +[136] The invitation to William seems to have been in debate some time +before the Prince of Wales's birth; but it does not follow that it +would have been despatched if the queen had borne a daughter; nor do I +think that it should have been. + +[137] Ralph, 980; Mazure, ii. 367. + +[138] Dalrymple, 216, 228. The prince was urged in the memorial of the +seven to declare the fraud of the queen's pregnancy to be one of the +grounds of his expedition. He did this: and it is the only part of his +declaration that is false. + +[139] _State Trials_, xii. 151. Mary put some very sensible questions +to her sister, which show her desire of reaching the truth in so +important a matter. They were answered in a style which shows that +Anne did not mean to lessen her sister's suspicions. Dalrymple, 305. +Her conversation with Lord Clarendon on this subject, after the +depositions had been taken, is a proof that she had made up her mind +not to be convinced. Henry Earl of Clarendon's _Diary_, 77, 79; _State +Trials_, ubi supra. + +[140] M. Mazure has collected all the passages in the letters of +Barillon and Bonrepos to the court of France relative to the queen's +pregnancy (ii. 366); and those relative to the birth of the Prince of +Wales. P. 547. It is to be observed that this took place more than a +month before the time expected. + +[141] Montesquieu. + +[142] Some short pamphlets, written at this juncture to excite +sympathy for the king, and disapprobation of the course pursued with +respect to him, are in the Somers Collection, vol. ix. But this force +put upon their sovereign first wounded the consciences of Sancroft and +the other bishops, who had hitherto done as much as in their station +they well could to ruin the king's cause and paralyse his arms. +Several modern writers have endeavoured to throw an interest about +James at the moment of his fall, either from a lurking predilection +for all legitimately crowned heads, or from a notion that it becomes a +generous historian to excite compassion for the unfortunate. There can +be no objection to pitying James, if this feeling is kept unmingled +with any blame of those who were the instruments of this misfortune. +It was highly expedient for the good of this country, because the +revolution settlement could not otherwise be attained, to work on +James's sense of his deserted state by intimidation; and for that +purpose the order conveyed by three of his own subjects, perhaps with +some rudeness of manner, to leave Whitehall was necessary. The drift +of several accounts of the revolution that may be read is to hold +forth Mulgrave, Craven, Arran, and Dundee to admiration, at the +expense of William and of those who achieved the great consolidation +of English liberty. + +[143] _Parl. Hist._ v. 26. The former address on the king's first +quitting London, signed by the peers and bishops, who met at +Guildhall, Dec. 11, did not, in express terms, desire the Prince of +Orange to assume the government, or to call a parliament, though it +evidently tended to that result, censuring the king and extolling the +prince's conduct. _Id._ 19. It was signed by the archbishop, his last +public act. Burnet has exposed himself to the lash of Ralph by stating +this address of Dec. 11 incorrectly. + +[144] Commons' Journals; _Parl. Hist._ + +[145] Somerville and several other writers have not accurately stated +the question; and suppose the Lords to have debated whether the +throne, on the hypothesis of its vacancy, should be filled by a king +or a regent. Such a mode of putting the question would have been +absurd. I observe that M. Mazure has been deceived by these +authorities. + +[146] _Parl. Hist._ 61. The chief speakers on this side were old Sir +Thomas Clarges, brother-in-law of General Monk, who had been +distinguished as an opponent of administration under Charles and +James, and Mr. Finch, brother of Lord Nottingham, who had been +solicitor-general to Charles, but was removed in the late reign. + +[147] James is called "the late king" in a resolution of the Lords on +Feb. 2. + +[148] 13 Car. II. c. i.; 17 Car. II. c. ii. + +[149] This was carried by sixty-two to forty-seven, according to Lord +Clarendon; several of the tories going over, and others who had been +hitherto absent coming down to vote. Forty peers protested, including +twelve bishops, out of seventeen present. Trelawney, who had voted +against the regency, was one of them; but not Compton, Lloyd of St. +Asaph, Crewe, Sprat, or Hall; the three former, I believe, being in +the majority. Lloyd had been absent when the vote passed against a +regency, out of unwillingness to disagree with the majority of his +brethren; but he was entirely of Burnet's mind. The votes of the +bishops are not accurately stated in most books; which has induced me +to mention them here. Lords' Journals, Feb. 6. + +[150] It had been resolved, Jan. 29, that before the committee proceed +to fill the throne now vacant, they will proceed to secure our +religion, laws, and liberties. + +[151] See Burnet's remarkable conversation with Bentinck, wherein the +former warmly opposed the settlement of the crown on the Prince of +Orange alone, as Halifax had suggested. But nothing in it is more +remarkable than that the bishop does not perceive that this was +virtually done; for it would be difficult to prove that Mary's royalty +differed at all from that of a queen consort, except in having her +name in the style. She was exactly in the same predicament as Philip +had been during his marriage with Mary I. Her admirable temper made +her acquiesce in this exclusion from power, which the sterner +character of her husband demanded; and with respect to the conduct of +the convention, it must be observed that the nation owed her no +particular debt of gratitude, nor had she any better claim than her +sister to fill a throne by election, which had been declared vacant. +In fact, there was no middle course between what was done, and +following the precedent of Philip, as to which Bentinck said, he +fancied the Prince would not like to be his wife's gentleman usher; +for a divided sovereignty was a monstrous and impracticable expedient +in theory, however the submissive disposition of the queen might have +prevented its mischiefs. Burnet seems to have had a puzzled view of +this; for he says afterwards, "it seemed to be a double-bottomed +monarchy, where there were two joint sovereigns; but those who know +the queen's temper and principles had no apprehensions of divided +counsels, or of a distracted government." Vol. ii. 2. The convention +had not trusted to the queen's temper and principles. It required a +distinct act of parliament (2 W. and M. c. 6) to enable her to +exercise the regal power during the king's absence from England. + + + + +CHAPTER XV + +ON THE REIGN OF WILLIAM III. + + +The Revolution is not to be considered as a mere effort of the nation +on a pressing emergency to rescue itself from the violence of a +particular monarch; much less as grounded upon the danger of the +Anglican church, its emoluments, and dignities, from the bigotry of a +hostile religion. It was rather the triumph of those principles which, +in the language of the present day, are denominated liberal or +constitutional, over those of absolute monarchy, or of monarchy not +effectually controlled by stated boundaries. It was the termination of +a contest between the regal power and that of parliament, which could +not have been brought to so favourable an issue by any other means. +But, while the chief renovation in the spirit of our government was +likely to spring from breaking the line of succession, while no +positive enactments would have sufficed to give security to freedom +with the legitimate race of Stuart on the throne, it would have been +most culpable, and even preposterous, to permit this occasion to pass +by, without asserting and defining those rights and liberties, which +the very indeterminate nature of the king's prerogative at common law, +as well as the unequivocal extension it had lately received, must +continually place in jeopardy. The House of Lords indeed, as I have +observed in the last chapter, would have conferred the Crown on +William and Mary, leaving the redress of grievances to future +arrangement; and some eminent lawyers in the Commons, Maynard and +Pollexfen, seem to have had apprehensions of keeping the nation too +long in a state of anarchy.[152] But the great majority of the Commons +wisely resolved to go at once to the root of the nation's grievances, +and show their new sovereign that he was raised to the throne for the +sake of those liberties, by violating which his predecessor had +forfeited it. + +_Declaration of rights._--The declaration of rights presented to the +Prince of Orange by the Marquis of Halifax, as speaker of the Lords, +in the presence of both houses, on the 18th of February, consists of +three parts: a recital of the illegal and arbitrary acts committed by +the late king, and of their consequent vote of abdication; a +declaration, nearly following the words of the former part, that such +enumerated acts are illegal; and a resolution, that the throne shall +be filled by the Prince and Princess of Orange, according to the +limitations mentioned in the last chapter. Thus the declaration of +rights was indissolubly connected with the revolution-settlement, as +its motive and its condition. + +The Lords and Commons in this instrument declare: That the pretended +power of suspending laws, and the execution of laws, by regal +authority without consent of parliament, is illegal; That the +pretended power of dispensing with laws by regal authority, as it hath +been assumed and exercised of late, is illegal; That the commission +for creating the late court of commissioners for ecclesiastical +causes, and all other commissions and courts of the like nature, are +illegal and pernicious; That levying of money for or to the use of the +Crown, by pretence of prerogative without grant of parliament, for +longer time or in any other manner than the same is or shall be +granted, is illegal; That it is the right of the subjects to petition +the king, and that all commitments or prosecutions for such petitions +are illegal; That the raising or keeping a standing army within the +kingdom in time of peace, unless it be with consent of parliament, is +illegal; That the subjects which are protestants may have arms for +their defence suitable to their condition, and as allowed by law; That +elections of members of parliament ought to be free; That the freedom +of speech or debates, or proceedings in parliament, ought not to be +impeached or questioned in any court or place out of parliament; That +excessive bail ought not to be required, nor excessive fines imposed, +nor cruel and unusual punishments inflicted; That juries ought to be +duly impanelled and returned, and that jurors which pass upon men in +trials of high treason ought to be freeholders; That all grants and +promises of fines and forfeitures of particular persons, before +conviction, are illegal and void; And that, for redress of all +grievances, and for the amending, strengthening, and preserving of the +laws, parliaments ought to be held frequently.[153] + +_Bill of rights._--This declaration was, some months afterwards, +confirmed by a regular act of the legislature in the bill of rights, +which establishes at the same time the limitation of the Crown +according to the vote of both houses, and adds the important +provision; That all persons who shall hold communion with the church +of Rome, or shall marry a papist, shall be excluded, and for ever +incapable to possess, inherit, or enjoy the Crown and government of +this realm; and in all such cases, the people of these realms shall be +absolved from their allegiance, and the Crown shall descend to the +next heir. This was as near an approach to a generalisation of the +principle of resistance as could be admitted with any security for +public order. + +The bill of rights contained only one clause extending rather beyond +the propositions laid down in the declaration. This relates to the +dispensing power, which the Lords had been unwilling absolutely to +condemn. They softened the general assertion of its illegality sent up +from the other house, by inserting the words "as it has been exercised +of late."[154] In the bill of rights therefore a clause was +introduced, that no dispensation by non obstante to any statute should +be allowed, except in such cases as should be specially provided for +by a bill to be passed during the present session. This reservation +went to satisfy the scruples of the Lords, who did not agree without +difficulty to the complete abolition of a prerogative, so long +recognised, and in many cases so convenient.[155] But the palpable +danger of permitting it to exist in its indefinite state, subject to +the interpretation of time-serving judges, prevailed with the Commons +over this consideration of conveniency; and though in the next +parliament the judges were ordered by the House of Lords to draw a +bill for the king's dispensing in such cases wherein they should find +it necessary, and for abrogating such laws as had been usually +dispensed with and were become useless, the subject seems to have +received no further attention.[156] + +Except in this article of the dispensing prerogative, we cannot say, +on comparing the bill of rights with what is proved to be the law by +statutes, or generally esteemed to be such on the authority of our +best writers, that it took away any legal power of the Crown, or +enlarged the limits of popular and parliamentary privilege. The most +questionable proposition, though at the same time one of the most +important, was that which asserts the illegality of a standing army in +time of peace, unless with consent of parliament. It seems difficult +to perceive in what respect this infringed on any private man's right, +or by what clear reason (for no statute could be pretended) the king +was debarred from enlisting soldiers by voluntary contract for the +defence of his dominions, especially after an express law had declared +the sole power over the militia, without giving any definition of +that word, to reside in the Crown. This had never been expressly +maintained by Charles II.'s parliaments; though the general repugnance +of the nation to what was certainly an innovation might have provoked +a body of men, who did not always measure their words, to declare its +illegality.[157] It was however at least unconstitutional, by which, +as distinguished from illegal, I mean a novelty of much importance, +tending to endanger the established laws. And it is manifest that the +king could never inflict penalties by martial law, or generally by any +other course, on his troops, nor quarter them on the inhabitants, nor +cause them to interfere with the civil authorities; so that, even if +the proposition so absolutely expressed may be somewhat too wide, it +still should be considered as virtually correct.[158] But its distinct +assertion in the bill of rights put a most essential restraint on the +monarchy, and rendered it in effect for ever impossible to employ any +direct force or intimidation against the established laws and +liberties of the people. + +_Discontent with the new government._--A revolution so thoroughly +remedial, and accomplished with so little cost of private suffering, +so little of angry punishment or oppression of the vanquished, ought +to have been hailed with unbounded thankfulness and satisfaction. The +nation's deliverer and chosen sovereign, in himself the most +magnanimous and heroic character of that age, might have expected no +return but admiration and gratitude. Yet this was very far from being +the case. In no period of time under the Stuarts were public +discontent and opposition of parliament more prominent than in the +reign of William III.; and that high-souled prince enjoyed far less of +his subject's affection than Charles II. No part of our history +perhaps is read upon the whole with less satisfaction than these +thirteen years, during which he sat upon his elective throne. It will +be sufficient for me to sketch generally the leading causes, and the +errors both of the prince and people, which hindered the blessings of +the revolution from being duly appreciated by its contemporaries. + +The votes of the two houses, that James had abdicated, or in plainer +words forfeited, his royal authority, that the crown was vacant, that +one out of the regular line of succession should be raised to it, were +so untenable by any known law, so repugnant to the principles of the +established church, that a nation accustomed to think upon matters of +government only as lawyers and churchmen dictated, could not easily +reconcile them to its preconceived notions of duty. The first burst of +resentment against the late king was mitigated by his fall; +compassion, and even confidence, began to take place of it; his +adherents--some denying or extenuating the faults of his +administration, others more artfully representing them as capable of +redress by legal measures--having recovered from their consternation, +took advantage of the necessary delay before the meeting of the +convention, and of the time consumed in its debates, to publish +pamphlets and circulate rumours in his behalf.[159] Thus, at the +moment when William and Mary were proclaimed (though it may be +probable that a majority of the kingdom sustained the bold votes of +its representatives), there was yet a very powerful minority who +believed the constitution to be most violently shaken, if not +irretrievably destroyed, and the rightful sovereign to have been +excluded by usurpation. The clergy were moved by pride and shame, by +the just apprehension that their influence over the people would be +impaired, by jealousy or hatred of the nonconformists, to deprecate so +practical a confutation of the doctrines they had preached, especially +when an oath of allegiance to their new sovereign came to be imposed; +and they had no alternative but to resign their benefices, or wound +their reputation and consciences by submission upon some casuistical +pretext.[160] Eight bishops, including the primate and several of +those who had been foremost in the defence of the church during the +late reign, with about four hundred clergy, some of them highly +distinguished, chose the more honourable course of refusing the new +oaths; and thus began the schism of the non-jurors, more mischievous +in its commencement than its continuance, and not so dangerous to the +government of William III. and George I. as the false submission of +less sincere men.[161] + +It seems undeniable that the strength of this Jacobite faction sprung +from the want of apparent necessity for the change of government. +Extreme oppression produces an impetuous tide of resistance, which +bears away the reasonings of the casuists. But the encroachments of +James II., being rather felt in prospect than much actual injury, left +men in a calmer temper, and disposed to weigh somewhat nicely the +nature of the proposed remedy. The revolution was, or at least seemed +to be, a case of political expediency; and expediency is always a +matter of uncertain argument. In many respects it was far better +conducted, more peaceably, more moderately, with less passion and +severity towards the guilty, with less mixture of democratic +turbulence, with less innovation on the regular laws, than if it had +been that extreme case of necessity which some are apt to require. But +it was obtained on this account with less unanimity and heartfelt +concurrence of the entire nation. + +_Character and errors of William._--The demeanour of William, always +cold and sometimes harsh, his foreign origin (a sort of crime in +English eyes) and foreign favourites, the natural and almost laudable +prejudice against one who had risen by the misfortunes of a very near +relation, a desire of power not very judiciously displayed by him, +conspired to keep alive this disaffection; and the opposite party, +regardless of all the decencies of political lying, took care to +aggravate it by the vilest calumnies against one, who, though not +exempt from errors, must be accounted the greatest man of his own age. +It is certain that his government was in very considerable danger for +three or four years after the revolution, and even to the peace of +Ryswick. The change appeared so marvellous, and contrary to the bent +of men's expectation, that it could not be permanent. Hence he was +surrounded by the timid and the treacherous; by those who meant to +have merits to plead after a restoration, and those who meant at least +to be secure. A new and revolutionary government is seldom fairly +dealt with. Mankind, accustomed to forgive almost everything in favour +of legitimate prescriptive power, exact an ideal faultlessness from +that which claims allegiance on the score of its utility. The personal +failings of its rulers, the negligences of their administration, even +the inevitable privations and difficulties which the nature of human +affairs or the misconduct of their predecessors create, are imputed to +them with invidious minuteness. Those who deem their own merit +unrewarded, become always a numerous and implacable class of +adversaries; those whose schemes of public improvement have not been +followed, think nothing gained by the change, and return to a restless +censoriousness in which they have been accustomed to place delight. +With all these it was natural that William should have to contend; but +we cannot in justice impute all the unpopularity of his administration +to the disaffection of one party, or the fickleness and ingratitude of +another. It arose in no slight degree from errors of his own. + +_Jealousy of the whigs._--The king had been raised to the throne by +the vigour and zeal of the whigs; but the opposite party were so +nearly upon an equality in both houses that it would have been +difficult to frame his government on an exclusive basis. It would also +have been highly impolitic, and, with respect to some few persons, +ungrateful, to put a slight upon those who had an undeniable majority +in the most powerful classes. William acted, therefore, on a wise and +liberal principle, in bestowing offices of trust on Lord Danby, so +meritorious in the revolution, and on Lord Nottingham, whose probity +was unimpeached; while he gave the whigs, as was due, a decided +preponderance in his council. Many of them, however, with that +indiscriminating acrimony which belongs to all factions, could not +endure the elevation of men who had complied with the court too long, +and seemed by their tardy opposition[162] to be rather the patriots of +the church than of civil liberty. They remembered that Danby had been +impeached as a corrupt and dangerous minister; that Halifax had been +involved, at least by holding a confidential office at the time, in +the last and worst part of Charles's reign. They saw Godolphin, who +had concurred in the commitment of the bishops, and every other +measure of the late king, still in the treasury; and, though they +could not reproach Nottingham with any misconduct, were shocked that +his conspicuous opposition to the new settlement should be rewarded +with the post of secretary of state. The mismanagement of affairs in +Ireland during 1689, which was very glaring, furnished specious +grounds for suspicion that the king was betrayed.[163] It is probable +that he was so, though not at that time by the chiefs of his ministry. +This was the beginning of that dissatisfaction with the government of +William, on the part of those who had the most zeal for his throne, +which eventually became far more harassing than the conspiracies of +his real enemies. Halifax gave way to the prejudices of the Commons, +and retired from power. These prejudices were no doubt unjust, as they +respected a man so sound in principle, though not uniform in conduct, +and who had withstood the arbitrary maxims of Charles and James in +that cabinet, of which he unfortunately continued too long a member. +But his fall is a warning to English statesmen, that they will be +deemed responsible to their country for measures which they +countenance by remaining in office, though they may resist them in +council. + +_Bill of indemnity._--The same honest warmth which impelled the whigs +to murmur at the employment of men sullied by their compliance with +the court, made them unwilling to concur in the king's desire of a +total amnesty. They retained the bill of indemnity in the Commons; and +excepting some by name, and many more by general clauses, gave their +adversaries a pretext for alarming all those whose conduct had not +been irreproachable. Clemency is indeed for the most part the wisest, +as well as the most generous policy; yet it might seem dangerous to +pass over with unlimited forgiveness that servile obedience to +arbitrary power, especially in the judges, which, as it springs from a +base motive, is best controlled by the fear of punishment. But some of +the late king's instruments had fled with him, others were lost and +ruined; it was better to follow the precedent set at the restoration, +than to give them a chance of regaining public sympathy by a +prosecution out of the regular course of law.[164] In one instance, +the expulsion of Sir Robert Sawyer from the house, the majority +displayed a just resentment against one of the most devoted adherents +of the prerogative, so long as civil liberty alone was in danger. +Sawyer had been latterly very conspicuous in defence of the church; +and it was expedient to let the nation see that the days of Charles +II. were not entirely forgotten.[165] Nothing was concluded as to the +indemnity in this parliament; but in the next, William took the +matter into his own hands by sending down an act of grace. + +_Bill for restoring corporations._--I scarcely venture, at this +distance from the scene, to pronounce an opinion as to the clause +introduced by the whigs into a bill for restoring corporations, which +excluded for the space of seven years all who had acted or even +concurred in surrendering charters from municipal offices of trust. +This was no doubt intended to maintain their own superiority by +keeping the church or tory faction out of corporations. It evidently +was not calculated to assuage the prevailing animosities. But, on the +other hand, the cowardly submissiveness of the others to the quo +warrantos seemed at least to deserve this censure; and the measure +could by no means be put on a level in point of rigour with the +corporation act of Charles II. As the dissenters, unquestioned friends +of the revolution, had been universally excluded by that statute, and +the tories had lately been strong enough to prevent their +re-admission, it was not unfair for the opposite party, or rather for +the government, to provide some security against men, who, in spite of +their oaths of allegiance, were not likely to have thoroughly abjured +their former principles. This clause, which modern historians +generally condemn as oppressive, had the strong support of Mr. Somers, +then solicitor-general. It was, however, lost through the court's +conjunction with the tories in the lower house, and the bill itself +fell to the ground in the upper; so that those who had come into +corporations by very ill means retained their power, to the great +disadvantage of the revolution party; as the next elections made +appear.[166] + +But if the whigs behaved in these instances with too much of that +passion, which, though offensive and mischievous in its excess, is yet +almost inseparable from patriotism and incorrupt sentiments in so +numerous an assembly as the House of Commons, they amply redeemed +their glory by what cost them the new king's favour, their wise and +admirable settlement of the revenue. + +_Settlement of the revenue._--The first parliament of Charles II. had +fixed on L1,200,000 as the ordinary revenue of the Crown, sufficient +in times of no peculiar exigency for the support of its dignity and +for the public defence. For this they provided various resources; the +hereditary excise on liquors granted in lieu of the king's feudal +rights, other excise and custom duties granted for his life, the +post-office, the crown lands, the tax called hearth money, or two +shillings for every house, and some of smaller consequence. These in +the beginning of that reign fell short of the estimate; but before its +termination, by the improvement of trade and stricter management of +the customs, they certainly exceeded that sum. For the revenue of +James from these sources, on an average of the four years of his +reign, amounted to L1,500,964; to which something more than L400,000 +is to be added for the produce of duties imposed for eight years by +his parliament of 1685.[167] + +William appears to have entertained no doubt that this great revenue, +as well as all the power and prerogative of the Crown, became vested +in himself as King of England, or at least ought to be instantly +settled by parliament according to the usual method.[168] There could +indeed be no pretence for disputing his right to the hereditary +excise, though this seems to have been questioned in debate; but the +Commons soon displayed a considerable reluctance to grant the +temporary revenue for the king's life. This had been done for several +centuries in the first parliament of every reign. But the accounts, +for which they called on this occasion, exhibited so considerable an +increase of the receipts on one hand, so alarming a disposition of the +expenditure on the other, that they deemed it expedient to restrain a +liberality, which was not only likely to go beyond their intention, +but to place them, at least in future times, too much within the power +of the Crown. Its average expenses appeared to have been L1,700,000. +Of this L610,000 was the charge of the late king's army, and L83,493 +of the ordnance. Nearly L90,000 was set under the suspicious head of +secret service, imprested to Mr. Guy, secretary of the treasury.[169] +Thus it was evident that, far from sinking below the proper level, as +had been the general complaint of the court in the Stuart reigns, the +revenue was greatly and dangerously above it; and its excess might +either be consumed in unnecessary luxury, or diverted to the worse +purposes of despotism and corruption. They had indeed just declared a +standing army to be illegal. But there could be no such security for +the observance of this declaration as the want of means in the Crown +to maintain one. Their experience of the interminable contention about +supply, which had been fought with various success between the kings +of England and their parliaments for some hundred years, dictated a +course to which they wisely and steadily adhered, and to which, +perhaps above all other changes at this revolution, the augmented +authority of the House of Commons must be ascribed. + +_Appropriation of supplies._--They began by voting that L1,200,000 +should be the annual revenue of the Crown in time of peace; and that +one half of this should be appropriated to the maintenance of the +king's government and royal family, or what is now called the civil +list, the other to the public defence and contingent expenditure.[170] +The breaking out of an eight years' war rendered it impossible to +carry into effect these resolutions as to the peace establishment: but +they did not lose sight of their principle, that the king's regular +and domestic expenses should be determined by a fixed annual sum, +distinct from the other departments of public service. They speedily +improved upon their original scheme of a definite revenue, by taking a +more close and constant superintendence of these departments, the +navy, army, and ordnance. Estimates of the probable expenditure were +regularly laid before them, and the supply granted was strictly +appropriated to each particular service. + +This great and fundamental principle, as it has long been justly +considered, that the money voted by parliament is appropriated, and +can only be applied, to certain specified heads of expenditure, was +introduced, as I have before mentioned, in the reign of Charles II., +and generally, though not in every instance, adopted by his +parliament. The unworthy House of Commons that sat in 1685, not +content with a needless augmentation of the revenue, took credit with +the king for not having appropriated their supplies.[171] But from the +revolution it has been the invariable usage. The lords of the +treasury, by a clause annually repeated in the appropriation act of +every session, are forbidden, under severe penalties, to order by +their warrant any monies in the exchequer, so appropriated, from being +issued for any other service, and the officers of the exchequer to +obey any such warrant. This has given the House of Commons so +effectual a control over the executive power, or, more truly speaking, +has rendered it so much a participator in that power, that no +administration can possibly subsist without its concurrence; nor can +the session of parliament be intermitted for an entire year, without +leaving both the naval and military force of the kingdom unprovided +for. In time of war, or in circumstances that may induce war, it has +not been very uncommon to deviate a little from the rule of +appropriation, by a grant of considerable sums on a vote of credit, +which the Crown is thus enabled to apply at its discretion during the +recess of parliament; and we have had also too frequent experience, +that the charges of public service have not been brought within the +limits of the last year's appropriation. But the general principle has +not perhaps been often transgressed without sufficient reason; and a +House of Commons would be deeply responsible to the country, if +through supine confidence it should abandon that high privilege which +has made it the arbiter of court factions, and the regulator of +foreign connections. It is to this transference of the executive +government (for the phrase is hardly too strong) from the Crown to the +two houses of parliament, and especially the Commons, that we owe the +proud attitude which England has maintained since the revolution, so +extraordinarily dissimilar, in the eyes of Europe, to her condition, +under the Stuarts. The supplies meted out with niggardly caution by +former parliaments to sovereigns whom they could not trust, have +flowed with redundant profuseness, when they could judge of their +necessity and direct their application. Doubtless the demand has +always been fixed by the ministers of the Crown, and its influence has +retrieved in some degree the loss of authority; but it is still true +that no small portion of the executive power, according to the +established laws and customs of our government, has passed into the +hands of that body, which prescribes the application of the revenue, +as well as investigates at its pleasure every act of the +administration.[172] + +_Dissatisfaction of the king._--The convention parliament continued +the revenue, as it already stood, until December 1690.[173] Their +successors complied so far with the king's expectation as to grant the +excise duties, besides those that were hereditary, for the lives of +William and Mary, and that of the survivor.[174] The customs they only +continued for four years. They provided extraordinary supplies for the +conduct of the war on a scale of armament, and consequently of +expenditure, unparalleled in the annals of England. But the +hesitation, and, as the king imagined, the distrust they had shown in +settling the ordinary revenue, sunk deep into his mind, and chiefly +alienated him from the whigs, who were stronger and more conspicuous +than their adversaries in the two sessions of 1689. If we believe +Burnet, he felt so indignantly what appeared a systematic endeavour to +reduce his power below the ancient standard of the monarchy, that he +was inclined to abandon the government, and leave the nation to +itself. He knew well, as he told the bishop, what was to be alleged +for the two forms of government, a monarchy and a commonwealth, and +would not determine which was preferable; but of all forms he thought +the worst was that of a monarchy without the necessary powers.[175] + +The desire of rule in William III. was as magnanimous and +public-spirited as ambition can ever be in a human bosom. It was the +consciousness not only of having devoted himself to a great cause, the +security of Europe, and especially of Great Britain and Holland, +against unceasing aggression, but of resources in his own firmness and +sagacity which no other person possessed. A commanding force, a +copious revenue, a supreme authority in councils, were not sought, as +by the crowd of kings, for the enjoyment of selfish vanity and +covetousness, but as the only sure instruments of success in his high +calling, in the race of heroic enterprise which Providence had +appointed for the elect champion of civil and religious liberty. We +can hardly wonder that he should not quite render justice to the +motives of those who seemed to impede his strenuous energies; that he +should resent as ingratitude those precautions against abuse of power +by him, the recent deliverer of the nation, which it had never called +for against those who had sought to enslave it. + +But reasonable as this apology may be, it was still an unhappy error +of William that he did not sufficiently weigh the circumstances which +had elevated him to the English throne, and the alteration they had +inevitably made in the relations between the Crown and the parliament. +Chosen upon the popular principle of general freedom and public good, +on the ruins of an ancient hereditary throne, he could expect to reign +on no other terms than as the chief of a commonwealth, with no other +authority than the sense of the nation and of parliament deemed +congenial to the new constitution. The debt of gratitude to him was +indeed immense, and not sufficiently remembered; but it was due for +having enabled the nation to regenerate itself, and to place barriers +against future assaults, to provide securities against future +misgovernment. No one could seriously assert that James II. was the +only sovereign of whom there had been cause to complain. In almost +every reign, on the contrary, which our history records, the innate +love of arbitrary power had produced more or less of oppression. The +revolution was chiefly beneficial, as it gave a stronger impulse to +the desire of political liberty, and rendered it more extensively +attainable. It was certainly not for the sake of replacing James by +William with equal powers of doing injury, that the purest and wisest +patriots engaged in that cause; but as the sole means of making a +royal government permanently compatible with freedom and justice. The +bill of rights had pretended to do nothing more than stigmatise some +recent proceedings: were the representatives of the nation to stop +short of other measures, because they seemed novel and restrictive of +the Crown's authority, when for the want of them the Crown's authority +had nearly freed itself from all restriction? Such was their true +motive for limiting the revenue, and such the ample justification of +those important statutes enacted in the course of this reign, which +the king, unfortunately for his reputation and peace of mind, too +jealously resisted. + +_No republican party in existence._--It is by no means unusual to find +mention of a commonwealth or republican party, as if it existed in +some force at the time of the revolution, and throughout the reign of +William III.; nay some writers, such as Hume, Dalrymple, and +Somerville, have, by putting them in a sort of balance against the +Jacobites, as the extremes of the whig and tory factions, endeavoured +to persuade us that the one was as substantial and united a body as +the other. It may, however, be confidently asserted, that no +republican party had any existence; if by that word we are to +understand a set of men whose object was the abolition of our limited +monarchy. There might unquestionably be persons, especially among the +independent sect, who cherished the memory of what they called the +good old cause, and thought civil liberty irreconcilable with any form +of regal government. But these were too inconsiderable, and too far +removed from political influence, to deserve the appellation of a +party. I believe it would be difficult to name five individuals, to +whom even a speculative preference of a commonwealth may with +probability be ascribed. Were it otherwise, the numerous pamphlets of +this period would bear witness to their activity. Yet, with the +exception perhaps of one or two, and those rather equivocal, we should +search, I suspect, the collections of that time in vain for any +manifestations of a republican spirit. If indeed an ardent zeal to see +the prerogative effectually restrained, to vindicate that high +authority of the House of Commons over the executive administration +which it has in fact claimed and exercised, to purify the house itself +from corrupt influence, if a tendency to dwell upon the popular origin +of civil society, and the principles which Locke, above other writers, +had brought again into fashion, be called republican (as in a primary +but less usual sense of the word they may), no one can deny that this +spirit eminently characterised the age of William III. And schemes of +reformation emanating from this source were sometimes offered to the +world, trenching more perhaps on the established constitution than +either necessity demanded or prudence warranted. But these were +anonymous and of little influence; nor did they ever extend to the +absolute subversion of the throne.[176] + +_William employs tories in ministry._--William, however, was very +early led to imagine, whether through the insinuations of Lord +Nottingham, as Burnet pretends, or the natural prejudice of kings +against those who do not comply with them, that there not only existed +a republican party, but that it numbered many supporters among the +principal whigs. He dissolved the convention-parliament; and gave his +confidence for some time to the opposite faction.[177] But, among +these, a real disaffection to his government prevailed so widely that +he could with difficulty select men sincerely attached to it. The +majority professed only to pay allegiance as to a sovereign _de +facto_, and violently opposed the bill of recognition in 1690, both on +account of the words rightful and lawful king which it applied to +William, and of its declaring the laws passed in the last parliament +to have been good and valid.[178] They had influence enough with the +king to defeat a bill proposed by the whigs, by which an oath of +abjuration of James's right was to be taken by all persons in +trust.[179] It is by no means certain that even those who abstained +from all connection with James after his loss of the throne, would +have made a strenuous resistance in case of his landing to recover +it.[180] But we know that a large proportion of the tories were +engaged in a confederacy to support him. Almost every peer, in fact, +of any consideration among that party, with the exception of Lord +Nottingham, is implicated by the secret documents which Macpherson and +Dalrymple have brought to light; especially Godolphin, Carmarthen, and +Marlborough, the second at that time prime minister of William (as he +might justly be called), the last with circumstances of extraordinary +and abandoned treachery towards his country as well as his +allegiance.[181] Two of the most distinguished whigs (and if the +imputation is not fully substantiated against others[182] by name, we +know generally that many were liable to it), forfeited a high name +among their contemporaries, in the eyes of a posterity which has known +them better; the Earl of Shrewsbury, from that strange feebleness of +soul which hung like a spell upon his nobler qualities, and Admiral +Russell, from insolent pride and sullenness of temper. Both these +were engaged in the vile intrigues of a faction they abhorred; but +Shrewsbury soon learned again to revere the sovereign he had +contributed to raise, and withdrew from the contamination of +Jacobitism. It does not appear that he betrayed that trust which +William is said with extraordinary magnanimity to have reposed on him, +after a full knowledge of his connection with the court of St. +Germain.[183] But Russell, though compelled to win the battle of La +Hogue against his will, took care to render his splendid victory as +little advantageous as possible. The credulity and almost wilful +blindness of faction is strongly manifested in the conduct of the +House of Commons as to the quarrel between this commander and the +board of admiralty. They chose to support one who was secretly a +traitor, because he bore the name of whig, tolerating his infamous +neglect of duty and contemptible excuses; in order to pull down an +honest, though not very able minister, who belonged to the +tories.[184] But they saw clearly that the king was betrayed, though +mistaken, in this instance, as to the persons; and were right in +concluding that the men who had effected the revolution were in +general most likely to maintain it; or, in the words of a committee of +the whole house, "That his majesty be humbly advised, for the +necessary support of his government, to employ in his councils and +management of his affairs such persons only whose principles oblige +them to stand by him and his right against the late King James, and +all other pretenders whatsoever."[185] It is plain from this and other +votes of the Commons, that the tories had lost that majority which +they seem to have held in the first session of this parliament.[186] + +It is not, however, to be inferred from this extensive combination in +favour of the banished king, that his party embraced the majority of +the nation, or that he could have been restored with any general +testimonies of satisfaction. The friends of the revolution were still +by far the more powerful body. Even the secret emissaries of James +confess that the common people were strongly prejudiced against his +return. His own enumeration of peers attached to his cause cannot be +brought to more than thirty, exclusive of catholics;[187] and the real +Jacobites were, I believe, in a far less proportion among the Commons. +The hopes of that wretched victim of his own bigotry and violence +rested less on the loyalty of his former subjects, or on their +disaffection to his rival, than on the perfidious conspiracy of +English statesmen and admirals, of lord-lieutenants and governors of +towns, and on so numerous a French army as an ill-defended and +disunited kingdom would be incapable to resist. He was to return, not +as his brother, alone and unarmed, strong only in the consentient +voice of the nation, but amidst the bayonets of 30,000 French +auxiliaries. These were the pledges of just and constitutional rule, +whom our patriot Jacobites invoked against the despotism of William +III. It was from a king of the house of Stuart, from James II., from +one thus encircled by the soldiers of Louis XIV., that we were to +receive the guarantee of civil and religious liberty. Happily the +determined love of arbitrary power, burning unextinguished amidst +exile and disgrace, would not permit him to promise, in any distinct +manner, those securities which a large portion of his own adherents +required. The Jacobite faction was divided between compounders and +non-compounders; the one insisting on the necessity of holding forth a +promise of such new enactments upon the king's restoration as might +remove all jealousies as to the rights of the church and people; the +other, more agreeably to James's temper, rejecting every compromise +with what they called the republican party at the expense of his +ancient prerogative.[188] In a declaration which he issued from St. +Germain in 1692 there was so little acknowledgment of error, so few +promises of security, so many exceptions from the amnesty he offered, +that the wiser of his partisans in England were willing to insinuate +that it was not authentic.[189] This declaration, and the virulence of +Jacobite pamphlets in the same tone, must have done harm to his +cause.[190] He published another declaration next year at the earnest +request of those who had seceded to his side from that of the +revolution, in which he held forth more specific assurances of +consenting to a limitation of his prerogative.[191] But no reflecting +man could avoid perceiving that such promises wrung from his distress +were illusory and insincere, that in the exultation of triumphant +loyalty, even without the sword of the Gaul thrown into the scale of +despotism, those who dreamed of a conditional restoration and of fresh +guarantees for civil liberty, would find, like the presbyterians of +1660, that it became them rather to be anxious about their own pardon, +and to receive it as a signal boon of the king's clemency. The +knowledge thus obtained of James's incorrigible obstinacy seems +gradually to have convinced the disaffected that no hope for the +nation or for themselves could be drawn from his restoration.[192] His +connections with the treacherous counsellors of William grew weaker; +and even before the peace of Ryswick it was evident that the aged +bigot could never wield again the sceptre he had thrown away. The +scheme of assassinating our illustrious sovereign, which some of +James's desperate zealots had devised without his privity, as may +charitably and even reasonably be supposed,[193] gave a fatal blow to +the interests of that faction. It was instantly seen that the murmurs +of malecontent whigs had nothing in common with the disaffection of +Jacobites. The nation resounded with an indignant cry against the +atrocious conspiracy. An association abjuring the title of James, and +pledging the subscribers to revenge the king's death, after the model +of that in the reign of Elizabeth, was generally signed by both houses +of parliament, and throughout the kingdom.[194] The adherents of the +exiled family dwindled into so powerless a minority that they could +make no sort of opposition to the act of settlement, and did not +recover an efficient character as a party till towards the latter end +of the ensuing reign. + +_Attainder of Sir John Fenwick._--Perhaps the indignation of +parliament against those who sought to bring back despotism through +civil war and the murder of an heroic sovereign, was carried too far +in the bill for attainting Sir John Fenwick of treason. Two witnesses, +required by our law in a charge of that nature, Porter and Goodman, +had deposed before the grand jury to Fenwick's share in the scheme of +invasion, though there is no reason to believe that he was privy to +the intended assassination of the king. His wife subsequently +prevailed on Goodman to quit the kingdom; and thus it became +impossible to obtain a conviction in the course of law. This was the +apology for a special act of the legislature, by which he suffered the +penalties of treason. It did not, like some other acts of attainder, +inflict a punishment beyond the offence, but supplied the deficiency +of legal evidence. It was sustained by the production of Goodman's +examination before the privy council, and by the evidence of two +grand-jurymen as to the deposition he had made on oath before them, +and on which they had found the bill of indictment. It was also shown +that he had been tampered with by Lady Mary Fenwick to leave the +kingdom. This was undoubtedly as good secondary evidence as can well +be imagined; and, though in criminal cases such evidence is not +admissible by courts of law, it was plausibly urged that the +legislature might prevent Fenwick from taking advantage of his own +underhand management, without transgressing the moral rules of +justice, or even setting the dangerous precedent of punishing treason +upon a single testimony. Yet, upon the whole, the importance of +adhering to the stubborn rules of law in matters of treason is so +weighty, and the difficulty of keeping such a body as the House of +Commons within any less precise limits so manifest, that we may well +concur with those who thought Sir John Fenwick much too inconsiderable +a person to warrant such an anomaly. The jealous sense of liberty +prevalent in William's reign produced a very strong opposition to this +bill of attainder; it passed in each house, especially in the Lords, +by a small majority.[195] Nor perhaps would it have been carried but +for Fenwick's imprudent disclosure, in order to save his life, of some +great statesmen's intrigues with the late king; a disclosure which he +dared not, or was not in a situation to confirm, but which rendered +him the victim of their fear and revenge. Russell, one of those +accused, brought into the Commons the bill of attainder; Marlborough +voted in favour of it, the only instance wherein he quitted the +tories; Godolphin and Bath, with more humanity, took the other side; +and Shrewsbury absented himself from the House of Lords.[196] It is +now well known that Fenwick's discoveries went not a step beyond the +truth. Their effect, however, was beneficial to the state; as by +displaying a strange want of secrecy in the court of St. Germains, +Fenwick never having had any direct communication with those he +accused, it caused Godolphin and Marlborough to break off their +dangerous course of perfidy.[197] + +_Ill success of the war._--Amidst these scenes of dissension and +disaffection, and amidst the public losses and decline which +aggravated them, we have scarce any object to contemplate with +pleasure, but the magnanimous and unconquerable soul of William. +Mistaken in some parts of his domestic policy, unsuited by some +failings of his character for the English nation, it is still to his +superiority in virtue and energy over all her own natives in that age +that England is indebted for the preservation of her honour and +liberty; not at the crisis only of the revolution, but through the +difficult period that elapsed until the peace of Ryswick. A war of +nine years, generally unfortunate, unsatisfactory in its result, +carried on at a cost unknown to former times, amidst the decay of +trade, the exhaustion of resources, the decline, as there seems good +reason to believe, of population itself, was the festering wound that +turned a people's gratitude into factiousness and treachery. It was +easy to excite the national prejudices against campaigns in Flanders, +especially when so unsuccessful, and to inveigh against the neglect of +our maritime power. Yet, unless we could have been secure against +invasion, which Louis would infallibly have attempted, had not his +whole force been occupied by the grand alliance, and which, in the +feeble condition of our navy and commerce, at one time could not have +been impracticable, the defeats of Steenkirk and Landen might probably +have been sustained at home. The war of 1689, and the great +confederacy of Europe, which William alone could animate with any +steadiness and energy, were most evidently and undeniably the means of +preserving the independence of England. That danger, which has +sometimes been in our countrymen's mouths with little meaning, of +becoming a province to France, was then close and actual; for I hold +the restoration of the house of Stuart to be but another expression +for that ignominy and servitude. + +_Expenses of the war._--The expense therefore of this war must not be +reckoned unnecessary; nor must we censure the government for that +small portion of our debt which it was compelled to entail on +posterity.[198] It is to the honour of William's administration, and +of his parliaments, not always clear-sighted, but honest and zealous +for the public weal, that they deviated so little from the +praiseworthy, though sometimes impracticable, policy of providing a +revenue commensurate with the annual expenditure. The supplies +annually raised during the war were about five millions, more than +double the revenue of James II. But a great decline took place in the +produce of the taxes by which that revenue was levied. In 1693, the +customs had dwindled to less than half their amount before the +revolution, the excise duties to little more than half.[199] This +rendered heavy impositions on land inevitable; a tax always obnoxious, +and keeping up disaffection in the most powerful class of the +community. The first land-tax was imposed in 1690, at the rate of +three shillings in the pound on the rental; and it continued ever +afterwards to be annually granted, at different rates, but commonly at +four shillings in the pound, till it was made perpetual in 1798. A tax +of twenty per cent. might well seem grievous; and the notorious +inequality of the assessment in different counties tended rather to +aggravate the burthen upon those whose contribution was the fairest. +Fresh schemes of finance were devised, and, on the whole, patiently +borne by a jaded people. The Bank of England rose under the auspices +of the whig party, and materially relieved the immediate exigencies of +the government, while it palliated the general distress, by +discounting bills and lending money at an easier rate of interest. Yet +its notes were depreciated twenty per cent. in exchange for silver; +and exchequer tallies at least twice as much, till they were funded at +an interest of eight per cent.[200] But, these resources generally +falling very short of calculation, and being anticipated at such an +exorbitant discount, a constantly increasing deficiency arose; and +public credit sunk so low, that about the year 1696 it was hardly +possible to pay the fleet and army from month to month, and a total +bankruptcy seemed near at hand. These distresses again were enhanced +by the depreciation of the circulating coin, and by the bold remedy of +a re-coinage, which made the immediate stagnation of commerce more +complete. The mere operation of exchanging the worn silver coin for +the new, which Mr. Montague had the courage to do without lowering the +standard, cost the government two millions and a half. Certainly the +vessel of our commonwealth has never been so close to shipwreck as in +this period; we have seen the storm raging in still greater terror +round our heads, but with far stouter planks and tougher cables to +confront and ride through it. + +Those who accused William of neglecting the maritime force of England, +knew little what they said, or cared little about its truth.[201] A +soldier and a native of Holland, he naturally looked to the Spanish +Netherlands as the theatre on which the battle of France and Europe +was to be fought. It was by the possession of that country and its +chief fortresses that Louis aspired to hold Holland in vassalage, to +menace the coasts of England, and to keep the Empire under his +influence. And if, with the assistance of those brave regiments, who +learned, in the well-contested though unfortunate battles of that war, +the skill and discipline which made them conquerors in the next, it +was found that France was still an overmatch for the allies, what +would have been effected against her by the decrepitude of Spain, the +perverse pride of Austria, and the selfish disunion of Germany? The +commerce of France might, perhaps, have suffered more by an +exclusively maritime warfare; but we should have obtained this +advantage, which in itself is none, and would not have essentially +crippled her force, at the price of abandoning to her ambition the +quarry it had so long in pursuit. Meanwhile the naval annals of this +war added much to our renown; Russell, glorious in his own despite at +La Hogue, Rooke, and Shovel kept up the honour of the English flag. +After that great victory, the enemy never encountered us in battle; +and the wintering of the fleet at Cadiz in 1694, a measure determined +on by William's energetic mind, against the advice of his ministers, +and in spite of the fretful insolence of the admiral, gave us so +decided a pre-eminence both in the Atlantic and Mediterranean seas, +that it is hard to say what more could have been achieved by the most +exclusive attention to the navy.[202] It is true that, especially +during the first part of the war, vast losses were sustained through +the capture of merchant ships; but this is the inevitable lot of a +commercial country, and has occurred in every war, until the practice +of placing the traders under convoy of armed ships was introduced. +And, when we consider the treachery which pervaded this service, and +the great facility of secret intelligence which the enemy possessed, +we may be astonished that our failures and losses were not still more +decisive. + +_Treaty of Ryswick._--The treaty of Ryswick was concluded on at least +as fair terms as almost perpetual ill fortune could warrant us to +expect. It compelled Louis XIV. to recognise the king's title, and +thus both humbled the court of St. Germains, and put an end for +several years to its intrigues. It extinguished, or rather the war +itself had extinguished, one of the bold hopes of the French court, +the scheme of procuring the election of the dauphin to the empire. It +gave at least a breathing time to Europe, so long as the feeble lamp +of Charles II.'s life should continue to glimmer, during which the +fate of his vast succession might possibly be regulated without injury +to the liberties of Europe.[203] But to those who looked with the +king's eyes on the prospects of the continent, this pacification could +appear nothing else than a preliminary armistice of vigilance and +preparation. He knew that the Spanish dominions, or at least as large +a portion of them as could be grasped by a powerful arm, had been for +more than thirty years the object of Louis XIV. The acquisitions of +that monarch at Aix-la-Chapelle and Nimeguen had been comparatively +trifling, and seem hardly enough to justify the dread that Europe felt +of his aggressions. But in contenting himself for the time with a few +strong towns, or a moderate district, he constantly kept in view the +weakness of the King of Spain's constitution. The queen's renunciation +of her right of succession was invalid in the jurisprudence of his +court. Sovereigns, according to the public law of France, +uncontrollable by the rights of others, were incapable of limiting +their own. They might do all things but guarantee the privileges of +their subjects or the independence of foreign states. By the Queen of +France's death, her claim upon the inheritance of Spain was devolved +upon the dauphin; so that ultimately, and virtually in the first +instance, the two great monarchies would be consolidated, and a single +will would direct a force much more than equal to all the rest of +Europe. If we admit that every little oscillation in the balance of +power has sometimes been too minutely regarded by English statesmen, +it would be absurd to contend, that such a subversion of it as the +union of France and Spain under one head did not most seriously +threaten both the independence of England and Holland. + +_Jealousy of the Commons._--The House of Commons which sat at the +conclusion of the treaty of Ryswick, chiefly composed of whigs, and +having zealously co-operated in the prosecution of the late war, could +not be supposed lukewarm in the cause of liberty, or indifferent to +the aggrandisement of France. But the nation's exhausted state seemed +to demand an intermission of its burthens, and revived the natural and +laudable disposition to frugality which had characterised in all +former times an English parliament. The arrears of the war, joined to +loans made during its progress, left a debt of about seventeen +millions, which excited much inquietude, and evidently could not be +discharged but by steady retrenchment and uninterrupted peace. But, +besides this, a reluctance to see a standing army established +prevailed among the great majority both of whigs and tories. It was +unknown to their ancestors--this was enough for one party; it was +dangerous to liberty--this alarmed the other. Men of ability and +honest intention, but, like most speculative politicians of the +sixteenth and seventeenth centuries, rather too fond of seeking +analogies in ancient history, influenced the public opinion by their +writings, and carried too far the undeniable truth, that a large army +at the mere control of an ambitious prince may often overthrow the +liberties of a people.[204] It was not sufficiently remembered that +the bill of rights, the annual mutiny bill, the necessity of annual +votes of supply for the maintenance of a regular army, besides, what +was far more than all, the publicity of all acts of government, and +the strong spirit of liberty burning in the people, had materially +diminished a danger which it would not be safe entirely to contemn. + +_Army reduced._--Such, however, was the influence of what may be +called the constitutional antipathy of the English in that age to a +regular army, that the Commons, in the first session after the peace, +voted that all troops raised since 1680 should be disbanded, reducing +the forces to about 7000 men, which they were with difficulty +prevailed upon to augment to 10,000.[205] They resolved at the same +time that, "in a just sense and acknowledgment of what great things +his majesty has done for these kingdoms, a sum not exceeding L700,000 +be granted to his majesty during his life, for the support of the +civil list." So ample a gift from an impoverished nation is the +strongest testimony of their affection to the king.[206] But he was +justly disappointed by the former vote, which, in the hazardous +condition of Europe, prevented this country from wearing a countenance +of preparation, more likely to avert than to bring on a second +conflict. He permitted himself, however, to carry this resentment too +far, and lost sight of that subordination to the law which is the duty +of an English sovereign, when he evaded compliance with this +resolution of the Commons, and took on himself the unconstitutional +responsibility of leaving sealed orders, when he went to Holland, that +16,000 men should be kept up, without the knowledge of his ministers, +which they as unconstitutionally obeyed. In the next session a new +parliament having been elected, full of men strongly imbued with what +the courtiers styled commonwealth principles, or an extreme jealousy +of royal power,[207] it was found impossible to resist a diminution +of the army to 7000 troops.[208] These too were voted to be natives of +the British dominions; and the king incurred the severest +mortification of his reign, in the necessity of sending back his +regiments of Dutch guards and French refugees. The messages that +passed between him and the parliament bear witness how deeply he felt, +and how fruitlessly he deprecated, this act of unkindness and +ingratitude, so strikingly in contrast with the deference that +parliament has generally shown to the honours and prejudices of the +Crown in matters of far higher moment.[209] The foreign troops were +too numerous, and it would have been politic to conciliate the +nationality of the multitude by reducing their number; yet they had +claims which a grateful and generous people should not have forgotten: +they were, many of them, the chivalry of protestantism, the Huguenot +gentlemen who had lost all but their swords in a cause which we deemed +our own; they were the men who had terrified James from Whitehall, and +brought about a deliverance, which, to speak plainly, we had neither +sense nor courage to achieve for ourselves, or which at least we could +never have achieved without enduring the convulsive throes of anarchy. + +_Irish forfeitures resumed._--There is, if not mere apology for the +conduct of the Commons, yet more to censure on the king's side, in +another scene of humiliation which he passed through, in the business +of the Irish forfeitures. These confiscations of the property of those +who had fought on the side of James, though, in a legal sense, at the +Crown's disposal, ought undoubtedly to have been applied to the public +service. It was the intention of parliament that two-thirds at least +of these estates should be sold for that purpose; and William had, in +answer to an address (Jan. 1690) promised to make no grant of them +till the matter should be considered in the ensuing session. Several +bills were brought in to carry the original resolutions into effect, +but, probably through the influence of government, they always fell to +the ground in one or other house of parliament. Meanwhile the king +granted away the whole of these forfeitures, about a million of acres, +with a culpable profuseness, to the enriching of his personal +favourites, such as the Earl of Portland and the Countess of +Orkney.[210] Yet as this had been done in the exercise of a lawful +prerogative, it is not easy to justify the act of resumption passed in +1699. The precedents for resumption of grants were obsolete, and from +bad times. It was agreed on all hands that the royal domain is not +inalienable; if this were a mischief, as could not perhaps be doubted, +it was one that the legislature had permitted with open eyes till +there was nothing left to be alienated. Acts therefore of this kind +shake the general stability of possession, and destroy that confidence +in which the practical sense of freedom consists, that the absolute +power of the legislature, which in strictness is as arbitrary in +England as in Persia, will be exercised in consistency with justice +and lenity. They are also accompanied for the most part, as appears to +have been the case in this instance of the Irish forfeitures, with +partiality and misrepresentation as well as violence, and seldom fail +to excite an odium far more than commensurate to the transient +popularity which attends them at the outset.[211] + +But, even if the resumption of William's Irish grants could be +reckoned defensible, there can be no doubt that the mode adopted by +the Commons, of tacking, as it was called, the provisions for this +purpose to a money bill, so as to render it impossible for the Lords +even to modify them without depriving the king of his supply, tended +to subvert the constitution and annihilate the rights of a co-equal +house of parliament. This most reprehensible device, though not an +unnatural consequence of their pretended right to an exclusive concern +in money bills, had been employed in a former instance during this +reign.[212] They were again successful on this occasion; the Lords +receded from their amendments, and passed the bill at the king's +desire, who perceived that the fury of the Commons was tending to a +terrible convulsion.[213] But the precedent was infinitely dangerous +to their legislative power. If the Commons, after some more attempts +of the same nature, desisted from so unjust an encroachment, it must +be attributed to that which has been the great preservative of the +equilibrium in our government, the public voice of a reflecting +people, averse to manifest innovation, and soon offended by the +intemperance of factions. + +_Parliamentary enquiries._--The essential change which the fall of the +old dynasty had wrought in our constitution displayed itself in such a +vigorous spirit of enquiry and interference of parliament with all the +course of government as, if not absolutely new, was more uncontested +and more effectual than before the revolution. The Commons indeed +under Charles II. had not wholly lost sight of the precedents which +the long parliament had established for them; but not without +continual resistance from the court, in which their right of +examination was by no means admitted. But the tories throughout the +reign of William evinced a departure from the ancient principles of +their faction in nothing more than in asserting to the fullest extent +the powers and privileges of the Commons; and, in the coalition they +formed with the malcontent whigs, if the men of liberty adopted the +nickname of the men of prerogative, the latter did not less take up +the maxims and feelings of the former. The bad success and suspected +management of public affairs co-operated with the strong spirit of +party to establish this important accession of authority to the House +of Commons. In June 1689, a special committee was appointed to enquire +into the miscarriages of the war in Ireland, especially as to the +delay in relieving Londonderry. A similar committee was appointed in +the Lords. The former reported severely against Colonel Lundy, +governor of that city; and the house addressed the king, that he might +be sent over to be tried for the treasons laid to his charge.[214] I +do not think there is any earlier precedent in the Journals for so +specific an enquiry into the conduct of a public officer, especially +one in military command. It marks therefore very distinctly the change +of spirit which I have so frequently mentioned. No courtier has ever +since ventured to deny this general right of enquiry, though it is the +constant practice to elude it. The right to enquire draws with it the +necessary means, the examination of witnesses, records, papers, +enforced by the strong arm of parliamentary privilege. In one respect +alone these powers have fallen rather short; the Commons do not +administer an oath; and having neglected to claim this authority in +the irregular times when they could make a privilege by a vote, they +would now perhaps find difficulty in obtaining it by consent of the +house of peers. They renewed this committee for enquiring into the +miscarriages of the war in the next session.[215] They went very fully +into the dispute between the board of admiralty and Admiral Russell, +after the battle of La Hogue;[216] and the year after investigated the +conduct of his successors, Killigrew and Delaval, in the command of +the Channel Fleet.[217] They went, in the winter of 1694, into a very +long examination of the admirals and the orders issued by the +admiralty during the preceding year; and then voted that the sending +the fleet to the Mediterranean, and the continuing it there this +winter, has been to the honour and interest of his majesty, and his +kingdoms.[218] But it is hardly worth while to enumerate later +instances of exercising a right which had become indisputable, and, +even before it rested on the basis of precedent, could not reasonably +be denied to those who might advise, remonstrate, and impeach. + +It is not surprising that, after such important acquisitions of power, +the natural spirit of encroachment, or the desire to distress a +hostile government, should have led to endeavours, which by their +success would have drawn the executive administration more directly +into the hands of parliament. A proposition was made by some peers, in +December 1692, for a committee of both houses to consider of the +present state of the nation, and what advice should be given to the +king concerning it. This dangerous project was lost by 48 to 36, +several tories and dissatisfied whigs uniting in a protest against its +rejection.[219] The king had in his speech to parliament requested +their advice in the most general terms; and this slight expression, +though no more than is contained in the common writ of summons, was +tortured into a pretext for so extraordinary a proposal as that of a +committee of delegates, or council of state, which might soon have +grasped the entire administration. It was at least a remedy so little +according to precedent, or the analogy of our constitution, that some +very serious cause of dissatisfaction with the conduct of affairs +could be its only excuse. + +Burnet has spoken with reprobation of another scheme engendered by the +same spirit of enquiry and control, that of a council of trade, to be +nominated by parliament, with powers for the effectual preservation of +the interests of the merchants. If the members of it were intended to +be immovable, or if the vacancies were to be filled by consent of +parliament, this would indeed have encroached on the prerogative in a +far more eminent degree than the famous India bill of 1783, because +its operation would have been more extensive and more at home. And, +even if they were only named in the first instance, as has been usual +in parliamentary commissioners of account or enquiry, it would still +be material to ask, what extent of power for the preservation of trade +was to be placed in their hands. The precise nature of the scheme is +not explained by Burnet. But it appears by the Journals that this +council was to receive information from merchants as to the necessity +of convoys, and send directions to the board of admiralty, subject to +the king's control, to receive complaints and represent the same to +the king, and in many other respects to exercise very important and +anomalous functions. They were not however to be members of the house. +But even with this restriction, it was too hazardous a departure from +the general maxims of the constitution.[220] + +_Treaties of partition._--The general unpopularity of William's +administration, and more particularly the reduction of the forces, +afford an ample justification for the two treaties of partition which +the tory faction, with scandalous injustice and inconsistency, turned +to his reproach. No one could deny that the aggrandisement of France +by both of these treaties was of serious consequence. But, according +to English interests, the first object was to secure the Spanish +Netherlands from becoming provinces of that power; and next to +maintain the real independence of Spain and the Indies. Italy was but +the last in order; and though the possession of Naples and Sicily, +with the ports of Tuscany, as stipulated in the treaty of partition, +would have rendered France absolute mistress of that whole country and +of the Mediterranean sea, and essentially changed the balance of +Europe, it was yet more tolerable than the acquisition of the whole +monarchy in the name of a Bourbon prince, which the opening of the +succession without previous arrangement was likely to produce. They at +least who shrunk from the thought of another war, and studiously +depreciated the value of continental alliances, were the last who +ought to have exclaimed against a treaty which had been ratified as +the sole means of giving us something like security, without the cost +of fighting for it. Nothing therefore could be more unreasonable than +the clamour of a tory House of Commons in 1701 (for the malcontent +whigs were now so consolidated with the tories as in general to bear +their name) against the partition treaties; nothing more unfair than +the impeachment of the four lords, Portland, Orford, Somers, and +Halifax, on that account. But we must at the same time remark, that it +is more easy to vindicate the partition treaties themselves, than to +reconcile the conduct of the king and of some others with the +principles established in our constitution. William had taken these +important negotiations wholly into his own hands, not even +communicating them to any of his English ministers, except Lord +Jersey, until his resolution was finally settled. Lord Somers, as +chancellor, had put the great seal to blank powers, as a legal +authority to the negotiators; which evidently could not be valid, +unless on the dangerous principle that the seal is conclusive against +all exception.[221] He had also sealed the ratification of the treaty, +though not consulted upon it, and though he seems to have had +objections to some of the terms; and in both instances he set up the +king's command as a sufficient defence. The exclusion of all those +whom, whether called privy or cabinet counsellors, the nation holds +responsible for its safety, from this great negotiation, tended to +throw back the whole executive government into the single will of the +sovereign, and ought to have exasperated the House of Commons far more +than the actual treaties of partition, which may probably have been +the safest choice in a most perilous condition of Europe. The +impeachments however were in most respects so ill substantiated by +proof, that they have generally been reckoned a disgraceful instance +of party spirit.[222] + +_Improvements in constitution under William._--The whigs, such of them +at least as continued to hold that name in honour, soon forgave the +mistakes and failings of their great deliverer; and indeed a high +regard for the memory of William III. may justly be reckoned one of +the tests by which genuine whiggism, as opposed both to tory and +republican principles, has always been recognised. By the opposite +party he was rancorously hated; and their malignant calumnies still +sully the stream of history.[223] Let us leave such as prefer Charles +I. to William III. in the enjoyment of prejudices which are not likely +to be overcome by argument. But it must ever be an honour to the +English Crown that it has been worn by so great a man. Compared with +him, the statesmen who surrounded his throne, the Sunderlands, +Godolphins, and Shrewsburys, even the Somerses and Montagues, sink +into insignificance. He was, in truth, too great, not for the times +wherein he was called to action, but for the peculiar condition of a +king of England after the revolution; and as he was the last sovereign +of this country, whose understanding and energy of character have been +very distinguished, so was he the last who has encountered the +resistance of his parliament, or stood apart and undisguised in the +maintenance of his own prerogative. His reign is no doubt one of the +most important in our constitutional history, both on account of its +general character, which I have slightly sketched, and of those +beneficial alterations in our law to which it gave rise. These now +call for our attention. + +_Bill for triennial parliaments._--The enormous duration of seventeen +years, for which Charles II. protracted his second parliament, turned +the thoughts of all who desired improvements in the constitution +towards some limitation on a prerogative which had not hitherto been +thus abused. Not only the continuance of the same House of Commons +during such a period destroyed the connection between the people and +their representatives, and laid open the latter, without +responsibility, to the corruption which was hardly denied to prevail; +but the privilege of exemption from civil process made needy and +worthless men secure against their creditors, and desirous of a seat +in parliament as a complete safeguard to fraud and injustice. The term +of three years appeared sufficient to establish a control of the +electoral over the representative body, without recurring to the +ancient but inconvenient scheme of annual parliaments, which men +enamoured of a still more popular form of government than our own were +eager to recommend. A bill for this purpose was brought into the House +of Lords in December 1689, but lost by the prorogation.[224] It passed +both houses early in 1693, the whigs generally supporting, and the +tories opposing it; but on this, as on many other great questions of +this reign, the two parties were not so regularly arrayed against each +other as on points of a more personal nature.[225] To this bill the +king refused his assent: an exercise of prerogative which no ordinary +circumstances can reconcile either with prudence or with a +constitutional administration of government. But the Commons, as it +was easy to foresee, did not abandon so important a measure; a similar +bill received the royal assent in November 1694.[226] By the triennial +bill it was simply provided that every parliament should cease and +determine within three years from its meeting. The clause contained in +the act of Charles II. against the intermission of parliaments for +more than three years is repeated; but it was not thought necessary to +revive the somewhat violent and perhaps impracticable provisions by +which the act of 1641 had secured their meeting; it being evident that +even annual sessions might now be relied upon as indispensable to the +machine of government. + +This annual assembly of parliament was rendered necessary, in the +first place, by the strict appropriation of the revenue according to +votes of supply. It was secured next, by passing the mutiny bill, +under which the army is held together, and subjected to military +discipline, for a short term, seldom or never exceeding twelve months. +These are the two effectual securities against military power; that no +pay can be issued to the troops without a previous authorisation by +the Commons in a committee of supply, and by both houses in an act of +appropriation; and that no officer or soldier can be punished for +disobedience, nor any court martial held, without the annual +re-enactment of the mutiny bill. Thus it is strictly true that, if the +king were not to summon parliament every year, his army would cease to +have a legal existence; and the refusal of either house to concur in +the mutiny bill would at once wrest the sword out of his grasp. By the +bill of rights, it is declared unlawful to keep any forces in time of +peace without consent of parliament. This consent, by an invariable +and wholesome usage, is given only from year to year; and its +necessity may be considered perhaps the most powerful of those causes +which have transferred so much even of the executive power into the +management of the two houses of parliament. + +_Law of treason._--The reign of William is also distinguished by the +provisions introduced into our law for the security of the subject +against iniquitous condemnations on the charge of high treason, and +intended to perfect those of earlier times, which had proved +insufficient against the partiality of judges. But upon this occasion +it will be necessary to take up the history of our constitutional law +on this important head from the beginning. + +In the earlier ages of our law, the crime of high treason appears to +have been of a vague and indefinite nature, determined only by such +arbitrary construction as the circumstances of each particular case +might suggest. It was held treason to kill the king's father or his +uncle; and Mortimer was attainted for accroaching, as it was called, +royal power; that is, for keeping the administration in his own +hands, though without violence towards the reigning prince. But no +people can enjoy a free constitution, unless an adequate security is +furnished by their laws against this discretion of judges in a matter +so closely connected with the mutual relation between the government +and its subjects. A petition was accordingly presented to Edward III. +by one of the best parliaments that ever sat, requesting that "whereas +the king's justices in different counties adjudge men indicted before +them to be traitors for divers matters not known by the Commons to be +treasonable, the king would, by his council, and the nobles and +learned men (les grands et sages) of the land, declare in parliament +what should be held for treason." The answer to this petition is in +the words of the existing statute, which, as it is by no means so +prolix as it is important, I shall place before the reader's eyes. + +_Statute of Edward III._--"Whereas divers opinions have been before +this time in what case treason shall be said, and in what not; the +king, at the request of the Lords and Commons, hath made a declaration +in the manner as hereafter followeth; that is to say, when a man doth +compass or imagine the death of our lord the king, of my lady his +queen, or of their eldest son and heir: or if a man do violate the +king's companion or the king's eldest daughter unmarried, or the wife +of the king's eldest son and heir: or if a man do levy war against our +lord the king in his realm, or be adherent to the king's enemies in +his realm, giving to them aid and comfort in the realm or elsewhere, +and thereof be provably attainted of open deed by people of their +condition; and if a man counterfeit the king's great or privy seal, or +his money; and if a man bring false money into this realm, counterfeit +to the money of England, as the money called Lusheburg, or other like +to the said money of England, knowing the money to be false, to +merchandise or make payment in deceipt of our said lord the king and +of his people; and if a man slay the chancellor, treasurer, or the +king's justices of the one bench or the other, justices in eyre, or +justices of assize, and all other justices assigned to hear and +determine, being in their place doing their offices; and it is to be +understood, that in the cases above rehearsed, it ought to be judged +treason which extends to our lord the king and his royal majesty. And +of such treason the forfeiture of the escheats pertaineth to our lord +the king, as well as the lands and tenements holden of others as of +himself."[227] + +_Its constructive interpretation._--It seems impossible not to observe +that the want of distinct arrangement natural to so unphilosophical an +age, and which renders many of our old statutes very confused, is +eminently displayed in this strange conjunction of offences; where to +counterfeit the king's seal, which might be for the sake of private +fraud, and even his coin, which must be so, is ranged along with all +that really endangers the established government, with conspiracy and +insurrection. But this is an objection of little magnitude, compared +with one that arises out of an omission in enumerating the modes +whereby treason could be committed. In most other offences, the +intention, however manifest, the contrivance, however deliberate, the +attempt, however casually rendered abortive, form so many degrees of +malignity, or at least of mischief, which the jurisprudence of most +countries, and none more than England, formerly, has been accustomed +to distinguish from the perpetrated action by awarding an inferior +punishment, or even none at all. Nor is this distinction merely +founded on a difference in the moral indignation with which we are +impelled to regard an inchoate and a consummate crime, but is +warranted by a principle of reason, since the penalties attached to +the completed offence spread their terror over all the machinations +preparatory to it; and he who fails in his stroke has had the +murderer's fate as much before his eyes as the more dexterous +assassin. But those who conspire against the constituted government +connect in their sanguine hope the assurance of impunity with the +execution of their crime, and would justly deride the mockery of an +accusation which could only be preferred against them when their +banners were unfurled, and their force arrayed. It is as reasonable, +therefore, as it is conformable to the usages of every country, to +place conspiracies against the sovereign power upon the footing of +actual rebellion, and to crush those by the penalties of treason, who, +were the law to wait for their opportunity, might silence or pervert +the law itself. Yet in this famous statute we find it only declared +treasonable to compass or imagine the king's death; while no project +of rebellion appears to fall within the letter of its enactments, +unless it ripen into a substantive act of levying war. + +We may be, perhaps, less inclined to attribute this material omission +to the laxity which has been already remarked to be usual in our older +laws, than to apprehensions entertained by the barons that, if a mere +design to levy war should be rendered treasonable, they might be +exposed to much false testimony and arbitrary construction. But +strained constructions of this very statute, if such were their aim, +they did not prevent. Without adverting to the more extravagant +convictions under this statute in some violent reigns, it gradually +became an established doctrine with lawyers, that a conspiracy to levy +war against the king's person, though not in itself a distinct +treason, may be given in evidence as an overt act of compassing his +death. Great as the authorities may be on which this depends, and +reasonable as it surely is that such offences should be brought within +the pale of high treason, yet it is almost necessary to confess that +this doctrine appears utterly irreconcilable with any fair +interpretation of the statute. It has indeed, by some, been chiefly +confined to cases where the attempt meditated is directly against the +king's person, for the purpose of deposing him, or of compelling him, +while under actual duress, to a change of measures; and this was +construed into a compassing of his death, since any such violence must +endanger his life, and because, as has been said, the prisons and +graves of princes are not very distant.[228] But it seems not very +reasonable to found a capital conviction on such a sententious remark; +nor is it by any means true that a design against a king's life is +necessarily to be inferred from the attempt to get possession of his +person. So far indeed is this from being a general rule, that in a +multitude of instances, especially during the minority or imbecility +of a king, the purposes of conspirators would be wholly defeated by +the death of the sovereign whose name they designed to employ. But +there is still less pretext for applying the same construction to +schemes of insurrection, when the royal person is not directly the +object of attack, and where no circumstance indicates any hostile +intention towards his safety. This ample extention of so penal a +statute was first given, if I am not mistaken, by the judges in 1663, +on occasion of a meeting by some persons at Farley Wood in +Yorkshire,[229] in order to concert measures for a rising. But it was +afterwards confirmed in Harding's case, immediately after the +revolution, and has been repeatedly laid down from the bench in +subsequent proceedings for treason, as well as in treatises of very +great authority.[230] It has therefore all the weight of established +precedent; yet I question whether another instance can be found in our +jurisprudence of giving so large a construction, not only to a penal +but to any other statute.[231] Nor does it speak in favour of this +construction, that temporary laws have been enacted on various +occasions to render a conspiracy to levy war treasonable; for which +purpose, according to this current doctrine, the statute of Edward +III. needed no supplemental provision. Such acts were passed under +Elizabeth, Charles II., and George III., each of them limited to the +existing reign.[232] But it is very seldom that, in an hereditary +monarchy, the reigning prince ought to be secured by any peculiar +provisions; and though the remarkable circumstances of Elizabeth's +situation exposed her government to unusual perils, there seems an air +of adulation or absurdity in the two latter instances. Finally, the +act of 57 G. 3, c. 6, has confirmed, if not extended, what stood on +rather a precarious basis, and rendered perpetual that of 36 G. 3, c. +7, which enacts, "that, if any person or persons whatsoever, during +the life of the king, and until the end of the next session of +parliament after a demise of the Crown, shall, within the realm or +without, compass, imagine, invent, devise, or intend death or +destruction, or any bodily harm tending to death or destruction, maim +or wounding, imprisonment or restraint of the person of the same our +sovereign lord the king, his heirs and successors, or to deprive or +depose him or them from the style, honour, or kingly name of the +imperial crown of this realm, or of any other of his majesty's +dominions or countries, or to levy war against his majesty, his heirs +and successors, within this realm, in order, by force or constraint, +to compel him or them to change his or their measures or counsels, or +in order to put any force or constraint upon, or to intimidate or +overawe, both houses, or either house of parliament, or to move or +stir any foreigner or stranger with force to invade this realm, or any +other his majesty's dominions or countries under the obeisance of his +majesty, his heirs and successors; and such compassings, imaginations, +inventions, devices, and intentions, or any of them, shall express, +utter, or declare, by publishing any printing or writing, or by any +overt act or deed; being legally convicted thereof upon the oaths of +two lawful and credible witnesses, shall be adjudged a traitor, and +suffer as in cases of high treason." + +This from henceforth will become our standard of constitutional law, +instead of the statute of Edward III., the latterly received +interpretations of which it sanctions and embodies. But it is to be +noted as the doctrine of our most approved authorities, that a +conspiracy for many purposes which, if carried into effect, would +incur the guilt of treason, will not of itself amount to it. The +constructive interpretation of compassing the king's death appears +only applicable to conspiracies, whereof the intent is to depose or to +use personal compulsion towards him, or to usurp the administration of +his government.[233] But though insurrections in order to throw down +all enclosures, to alter the established law or change religion, or in +general for the reformation of alleged grievances of a public nature, +wherein the insurgents have no special interest, are in themselves +treasonable, yet the previous concert and conspiracy for such purpose +could, under the statute of Edward III., only pass for a misdemeanour. +Hence, while it has been positively laid down, that an attempt by +intimidation and violence to force the repeal of a law is high +treason,[234] though directed rather against the two houses of +parliament than the king's person, the judges did not venture to +declare that a mere conspiracy and consultation to raise a force for +that purpose would amount to that offence.[235] But the statutes of 36 +& 57 Geo. 3 determine the intention to levy war, in order to put any +force upon or to intimidate either house of parliament, manifested by +any overt act, to be treason, and so far have undoubtedly extended the +scope of the law. We may hope that so ample a legislative declaration +on the law of treason will put an end to the preposterous +interpretations which have found too much countenance on some not very +distant occasions. The crime of compassing and imagining the king's +death must be manifested by some overt act; that is, there must be +something done in execution of a traitorous purpose. For as no hatred +towards the person of the sovereign, nor any longings for his death, +are the imagination which the law here intends, it seems to follow +that loose words or writings, in which such hostile feelings may be +embodied, unconnected with any positive design, cannot amount to +treason. It is now therefore generally agreed, that no words will +constitute that offence, unless as evidence of some overt act of +treason; and the same appears clearly to be the case with respect at +least to unpublished writings.[236] + +The second clause of the statute, or that which declares the levying +of war against the king within the realm to be treason, has given +rise, in some instances, to constructions hardly less strained than +those upon compassing his death. It would indeed be a very narrow +interpretation, as little required by the letter as warranted by the +reason of this law, to limit the expression of levying war to +rebellions, whereof the deposition of the sovereign, or subversion of +his government, should be the deliberate object. Force, unlawfully +directed against the supreme authority, constitutes this offence; nor +could it have been admitted as an excuse for the wild attempt of the +Earl of Essex, on this charge of levying war, that his aim was not to +injure the queen's person, but to drive his adversaries from her +presence. The only questions as to this kind of treason are; first, +what shall be understood by force? and secondly, where it shall be +construed to be directed against the government? And the solution of +both these, upon consistent principles, must so much depend on the +circumstances which vary the character of almost every case, that it +seems natural to distrust the general maxims that have been delivered +by lawyers. Many decisions in cases of treason before the revolution +were made by men so servile and corrupt, they violate so grossly all +natural right and all reasonable interpretation of law, that it has +generally been accounted among the most important benefits of that +event to have restored a purer administration of criminal justice. +But, though the memory of those who pronounced these decisions is +stigmatised, their authority, so far from being abrogated, has +influenced later and better men; and it is rather an unfortunate +circumstance, that precedents which, from the character of the times +when they occurred, would lose at present all respect, having been +transfused into text-books, and formed perhaps the sole basis of +subsequent decisions, are still in not a few points the invisible +foundation of our law. No lawyer, I conceive, prosecuting for high +treason in this age, would rely on the case of the Duke of Norfolk +under Elizabeth, or that of Williams under James I., or that of +Benstead under Charles I.; but he would certainly not fail to dwell on +the authorities of Sir Edward Coke and Sir Matthew Hale. Yet these +eminent men, and especially the latter, aware that our law is mainly +built on adjudged precedent, and not daring to reject that which they +would not have themselves asserted, will be found to have rather +timidly exercised their judgment in the construction of this statute, +yielding a deference to former authority which we have transferred to +their own. + +These observations are particularly applicable to that class of cases +so repugnant to the general understanding of mankind, and, I believe, +of most lawyers, wherein trifling insurrections for the purpose of +destroying brothels or meeting-houses have been held treasonable under +the clause of levying war. Nor does there seem any ground for the +defence which has been made for this construction, by taking a +distinction, that although a rising to effect a partial end by force +is only a riot, yet where a general purpose of the kind is in view it +becomes rebellion; and thus, though to pull down the enclosures in a +single manor be not treason against the king, yet to destroy all +enclosures throughout the kingdom would be an infringement of his +sovereign power. For, however solid this distinction may be, yet in +the class of cases to which I allude, this general purpose was neither +attempted to be made out in evidence, nor rendered probable by the +circumstances; nor was the distinction ever taken upon the several +trials. A few apprentices rose in London in the reign of Charles II., +and destroyed some brothels.[237] A mob of watermen and others, at the +time of Sacheverell's impeachment, set on fire several dissenting +meeting-houses.[238] Everything like a formal attack on the +established government is so much excluded in these instances by the +very nature of the offence and the means of the offenders, that it is +impossible to withhold our reprobation from the original decision, +upon which, with too much respect for unreasonable and unjust +authority, the later cases have been established. These indeed still +continue to be cited as law; but it is much to be doubted whether a +conviction for treason will ever again be obtained, or even sought +for, under similar circumstances. One reason indeed for this, were +there no weight in any other, might suffice; the punishment of +tumultuous risings, attended with violence, has been rendered capital +by the riot act of George I. and other statutes; so that, in the +present state of the law, it is generally more advantageous for the +government to treat such an offence as felony than as treason. + +_Statute of William III._--It might for a moment be doubted, upon the +statute of Edward VI., whether the two witnesses whom the act requires +must not depose to the same overt acts of treason. But, as this would +give an undue security to conspirators, so it is not necessarily +implied by the expression; nor would it be indeed the most +unwarrantable latitude that has been given to this branch of penal +law, to maintain that two witnesses to any distinct acts comprised in +the same indictment would satisfy the letter of this enactment. But a +more wholesome distinction appears to have been taken before the +revolution, and is established by the statute of William, that, +although different overt acts may be proved by two witnesses, they +must relate to the same species of treason, so that one witness to an +alleged act of compassing the king's death cannot be conjoined with +another deposing to an act of levying war, in order to make up the +required number.[239] As for the practice of courts of justice before +the restoration, it was so much at variance with all principles, that +few prisoners were allowed the benefit of this statute;[240] +succeeding judges fortunately deviated more from their predecessors in +the method of conducting trials than they have thought themselves at +liberty to do in laying down rules of law. + +Nothing had brought so much disgrace on the councils of government and +on the administration of justice, nothing had more forcibly spoken the +necessity of a great change than the prosecutions for treason during +the latter years of Charles II., and in truth during the whole course +of our legal history. The statutes of Edward III. and Edward VI., +almost set aside by sophistical constructions, required the +corroboration of some more explicit law; and some peculiar securities +were demanded for innocence against that conspiracy of the court with +the prosecutor, which is so much to be dreaded in all trials for +political crimes. Hence the attainders of Russell, Sidney, Cornish, +and Armstrong were reversed by the convention-parliament without +opposition; and men attached to liberty and justice, whether of the +whig or tory name, were anxious to prevent any future recurrence of +those iniquitous proceedings, by which the popular frenzy at one time, +the wickedness of the court at another, and in each instance with the +co-operation of a servile bench of judges, had sullied the honour of +English justice. A better tone of political sentiment had begun indeed +to prevail, and the spirit of the people must ever be a more effectual +security than the virtue of the judges; yet, even after the +revolution, if no unjust or illegal convictions in cases of treason +can be imputed to our tribunals, there was still not a little of that +rudeness towards the prisoner, and manifestation of a desire to +interpret all things to his prejudice, which had been more grossly +displayed by the bench under Charles II. The jacobites, against whom +the law now directed its terrors, as loudly complained of Treby and +Pollexfen, as the whigs had of Scroggs and Jefferies, and weighed the +convictions of Ashton and Anderton against those of Russell and +Sidney.[241] + +Ashton was a gentleman, who, in company with Lord Preston, was seized +in endeavouring to go over to France with an invitation from the +jacobite party. The contemporary writers on that side, and some +historians who incline to it, have represented his conviction as +grounded upon insufficient, because only upon presumptive evidence. It +is true that in most of our earlier cases of treason, treasonable +facts have been directly proved; whereas it was left to the jury in +that of Ashton, whether they were satisfied of his acquaintance with +the contents of certain papers taken on his person. There does not +however seem to be any reason why presumptive inferences are to be +rejected in charges of treason, or why they should be drawn with more +hesitation than in other grave offences; and if this be admitted, +there can be no doubt that the evidence against Ashton was such as is +ordinarily reckoned conclusive. It is stronger than that offered for +the prosecution against O'Quigley at Maidstone in 1798, a case of the +closest resemblance; and yet I am not aware that the verdict in that +instance was thought open to censure. No judge however in modern times +would question, much less reply upon, the prisoner, as to material +points of his defence, as Holt and Pollexfen did in this trial; the +practice of a neighbouring kingdom, which, in our more advanced sense +of equity and candour, we are agreed to condemn.[242] + +It is perhaps less easy to justify the conduct of Chief-Justice Treby +in the trial of Anderton for printing a treasonable pamphlet. The +testimony came very short of satisfactory proof, according to the +established rules of English law, though by no means such as men in +general would slight. It chiefly consisted of a comparison between the +characters of a printed work found concealed in his lodgings and +certain types belonging to his press; a comparison manifestly less +admissible than that of handwriting, which is always rejected, and +indeed totally inconsistent with the rigour of English proof. Besides +the common objections made to a comparison of hands, and which apply +more forcibly to printed characters, it is manifest that types cast in +the same font must always be exactly similar. But, on the other hand, +it seems unreasonable absolutely to exclude, as our courts have done, +the comparison of handwriting as inadmissible evidence; a rule which +is every day eluded by fresh rules, not much more rational in +themselves, which have been invented to get rid of its inconvenience. +There seems however much danger in the construction which draws +printed libels, unconnected with any conspiracy, within the pale of +treason, and especially the treason of compassing the king's death, +unless where they directly tended to his assassination. No later +authority can, as far as I remember, be adduced for the prosecution of +any libel as treasonable, under the statute of Edward III. But the +pamphlet for which Anderton was convicted was certainly full of the +most audacious jacobitism, and might perhaps fall, by no unfair +construction, within the charge of adhering to the king's enemies; +since no one could be more so than James, whose design of invading the +realm had been frequently avowed by himself.[243] + +A bill for regulating trials upon charges of high treason passed the +Commons with slight resistance by the Crown lawyers in 1691.[244] The +Lords introduced a provision in their own favour, that upon the trial +of a peer in the court of the high steward, all such as were entitled +to vote should be regularly summoned; it having been the practice to +select twenty-three at the discretion of the Crown. Those who wished +to hinder the bill availed themselves of the jealousy which the +Commons in that age entertained of the upper house of parliament, and +persuaded them to disagree with this just and reasonable +amendment.[245] It fell to the ground therefore on this occasion; and +though more than once revived in subsequent sessions, the same +difference between the two houses continued to be insuperable.[246] +In the new parliament that met in 1695, Commons had the good sense to +recede from an irrational jealousy. Notwithstanding the reluctance of +the ministry, for which perhaps the very dangerous position of the +king's government furnishes an apology, this excellent statute was +enacted as an additional guarantee (in such bad times as might again +occur) to those who are prominent in their country's cause, against +the great danger of false accusers and iniquitous judges.[247] It +provides that all persons indicted for high treason shall have a copy +of their indictment delivered to them five days before their trial, a +period extended by a subsequent act to ten days, and a copy of the +panel of jurors two days before their trial; that they shall be +allowed to have their witnesses examined on oath, and to make their +defence by counsel. It clears up any doubt that could be pretended on +the statute of Edward VI., by requiring two witnesses, either both to +the same overt act, or the first to one, the second to another overt +act of the same treason (that is, the same kind of treason), unless +the party shall voluntarily confess the charge.[248] It limits +prosecutions for treason to the term of three years, except in the +case of an attempted assassination on the king. It includes the +contested provision for the trial of peers by all who have a right to +sit and vote in parliament. A later statute, 7 Anne, c. 21, which may +be mentioned here as the complement of the former, has added a +peculiar privilege to the accused, hardly less material than any of +the rest. Ten days before the trial, a list of the witnesses intended +to be brought for proving the indictment, with their professions and +place of abode, must be delivered to the prisoner, along with the copy +of the indictment. The operation of this clause was suspended till +after the death of the pretended Prince of Wales. + +Notwithstanding a hasty remark of Burnet, that the design of this bill +seemed to be to make men as safe in all treasonable practices as +possible, it ought to be considered a valuable accession to our +constitutional law; and no part, I think, of either statute will be +reckoned inexpedient, when we reflect upon the history of all nations, +and more especially of our own. The history of all nations, and more +especially of our own, in the fresh recollection of those who took a +share in these acts, teaches us that false accusers are always +encouraged by a bad government, and may easily deceive a good one. A +prompt belief in the spies whom they perhaps necessarily employ, in +the voluntary informers who dress up probable falsehoods, is so +natural and constant in the offices of ministers, that the best are to +be heard with suspicion when they bring forward such testimony. One +instance, at least, had occurred since the revolution, of charges +unquestionably false in their specific details, preferred against men +of eminence by impostors who panted for the laurels of Oates and +Turberville.[249] And, as men who are accused of conspiracy against a +government are generally such as are beyond question disaffected to +it, the indiscriminating temper of the prejudging people, from whom +juries must be taken, is as much to be apprehended, when it happens to +be favourable to authority, as that of the government itself; and +requires as much the best securities, imperfect as the best are, which +prudence and patriotism can furnish to innocence. That the prisoner's +witnesses should be examined on oath will of course not be disputed, +since by a subsequent statute that strange and unjust anomaly in our +criminal law has been removed in all cases as well as in treason; but +the judges had sometimes not been ashamed to point out to the jury, in +derogation of the credit of those whom a prisoner called in his +behalf, that they were not speaking under the same sanction as those +for the Crown. It was not less reasonable that the defence should be +conducted by counsel; since that excuse which is often made for +denying the assistance of counsel on charges of felony, namely, the +moderation of prosecutors and the humanity of the bench, could never +be urged in those political accusations wherein the advocates for the +prosecution contend with all their strength for victory; and the +impartiality of the court is rather praised when it is found than +relied upon beforehand.[250] Nor does there lie any sufficient +objection even to that which many dislike, the furnishing a list of +the witnesses to the prisoner, when we set on the other side the +danger of taking away innocent lives by the testimony of suborned and +infamous men, and remember also that a guilty person can rarely be +ignorant of those who will bear witness against him; or if he could, +that he may always discover those who have been examined before the +grand jury, and that no others can in any case be called on the trial. + +The subtlety of Crown lawyers in drawing indictments for treason, and +the willingness of judges to favour such prosecutions, have +considerably eluded the chief difficulties which the several statutes +appear to throw in their way. The government has at least had no +reason to complain that the construction of those enactments has been +too rigid. The overt acts laid in the indictment are expressed so +generally that they give sometimes little insight into the particular +circumstances to be adduced in evidence; and, though the act of +William is positive that no evidence shall be given of any overt act +not laid in the indictment, it has been held allowable, and is become +the constant practice, to bring forward such evidence, not as +substantive charges, but on the pretence of its tending to prove +certain other acts specially alleged. The disposition to extend a +constructive interpretation to the statute of Edward III. has +continued to increase; and was carried, especially by Chief-Justice +Eyre in the trials of 1794, to a length at which we lose sight +altogether of the plain meaning of words, and apparently much beyond +what Pemberton, or even Jefferies, had reached. In the vast mass of +circumstantial testimony which our modern trials for high treason +display, it is sometimes difficult to discern whether the great +principle of our law, requiring two witnesses to overt acts, has been +adhered to; for certainly it is not adhered to, unless such witnesses +depose to acts of the prisoner, from which an inference of his guilt +is immediately deducible.[251] There can be no doubt that state +prosecutions have long been conducted with an urbanity and exterior +moderation unknown to the age of the Stuarts, or even to that of +William; but this may by possibility be compatible with very partial +wrestling of the law, and the substitution of a sort of political +reasoning for that strict interpretation of penal statutes which the +subject has a right to demand. No confidence in the general integrity +of a government, much less in that of its lawyers, least of all any +belief in the guilt of an accused person, should beguile us to remit +that vigilance which is peculiarly required in such circumstances.[252] + +For this vigilance, and indeed for almost all that keeps up in us, +permanently and effectually, the spirit of regard to liberty and the +public good, we must look to the unshackled and independent energies +of the press. In the reign of William III., and through the influence +of the popular principle in our constitution, this finally became +free. The licensing act, suffered to expire in 1679, was revived in +1685 for seven years. In 1692, it was continued till the end of the +session of 1693. Several attempts were afterwards made to renew its +operation, which the less courtly whigs combined with the tories and +jacobites to defeat.[253] Both parties indeed employed the press with +great diligence in this reign; but while one degenerated into +malignant calumny and misrepresentation, the signal victory of liberal +principles is manifestly due to the boldness and eloquence with which +they were promulgated. Even during the existence of a censorship, a +host of unlicensed publications, by the negligence or connivance of +the officers employed to seize them, bore witness to the inefficacy of +its restrictions. The bitterest invectives of jacobitism were +circulated in the first four years after the revolution.[254] + +_Liberty of the press._--The liberty of the press consists, in a +strict sense, merely in an exemption from the superintendence of a +licenser. But it cannot be said to exist in any security, or +sufficiently for its principal ends, where discussions of a political +or religious nature, whether general or particular, are restrained by +too narrow and severe limitations. The law of libel has always been +indefinite; an evil probably beyond any complete remedy, but which +evidently renders the liberty of free discussion rather more +precarious in its exercise than might be wished. It appears to have +been the received doctrine in Westminster Hall before the revolution, +that no man might publish a writing reflecting on the government, nor +upon the character, or even capacity and fitness, of any one employed +in it. Nothing having passed to change the law, the law remained as +before. Hence in the case of Tutchin, it is laid down by Holt, that to +possess the people with an ill opinion of the government, that is, of +the ministry, is a libel. And the attorney-general, in his speech for +the prosecution, urges that there can be no reflection on those that +are in office under her majesty, but it must cast some reflection on +the queen who employs them. Yet in this case the censure upon the +administration, in the passages selected for prosecution, was merely +general, and without reference to any person, upon which the counsel +for Tutchin vainly relied.[255] + +It is manifest that such a doctrine was irreconcilable with the +interests of any party out of power, whose best hope to regain it is +commonly by prepossessing the nation with a bad opinion of their +adversaries. Nor would it have been possible for any ministry to stop +the torrent of a free press, under the secret guidance of a powerful +faction, by a few indictments for libel. They found it generally more +expedient and more agreeable to borrow weapons from the same armoury, +and retaliate with unsparing invective and calumny. This was first +practised (first, I mean, with the avowed countenance of government) +by Swift in the _Examiner_, and some of his other writings. And both +parties soon went such lengths in this warfare that it became tacitly +understood that the public characters of statesmen, and the measures +of administration, are the fair topics of pretty severe attacks. Less +than this indeed would not have contented the political temper of the +nation, gradually and without intermission becoming more democratical, +and more capable, as well as more accustomed, to judge of its general +interests, and of those to whom they were intrusted. The just limit +between political and private censure has been far better drawn in +these later times, licentious as we still may justly deem the press, +than in an age when courts of justice had not deigned to acknowledge, +as they do at present, its theoretical liberty. No writer, except of +the most broken reputation, would venture at this day on the malignant +calumnies of Swift. + +_Law of libel._--Meanwhile the judges naturally adhered to their +established doctrine; and, in prosecutions for political libels, were +very little inclined to favour what they deemed the presumption, if +not the licentiousness, of the press. They advanced a little farther +than their predecessors; and, contrary to the practice both before and +after the revolution, laid it down at length as an absolute principle, +that falsehood, though always alleged in the indictment, was not +essential to the guilt of the libel; refusing to admit its truth to be +pleaded, or given in evidence, or even urged by way of mitigation of +punishment.[256] But as the defendant could only be convicted by the +verdict of a jury, and jurors both partook of the general sentiment in +favour of free discussion, and might in certain cases have acquired +some prepossessions as to the real truth of the supposed libel, which +the court's refusal to enter upon it could not remove, they were often +reluctant to find a verdict of guilty; and hence arose by degrees a +sort of contention which sometimes showed itself upon trials, and +divided both the profession of the law and the general public. The +judges and lawyers, for the most part, maintained that the province of +the jury was only to determine the fact of publication; and also +whether what are called the innuendoes were properly filled up, that +is, whether the libel meant that which it was alleged in the +indictment to mean, not whether such meaning were criminal or +innocent, a question of law which the court were exclusively competent +to decide. That the jury might acquit at their pleasure was +undeniable; but it was asserted that they would do so in violation of +their oaths and duty, if they should reject the opinion of the judge +by whom they were to be guided as to the general law. Others of great +name in our jurisprudence, and the majority of the public at large, +conceiving that this would throw the liberty of the press altogether +into the hands of the judges, maintained that the jury had a strict +right to take the whole matter into their consideration, and determine +the defendant's criminality or innocence according to the nature and +circumstances of the publication. This controversy, which perhaps +hardly arose within the period to which the present work relates, was +settled by Mr. Fox's libel bill in 1792. It declares the right of the +jury to find a general verdict upon the whole matter; and though, from +causes easy to explain, it is not drawn in the most intelligible and +consistent manner, was certainly designed to turn the defendant's +intention, as it might be laudable or innocent, seditious or +malignant, into a matter of fact for their enquiry and decision. + +_Religious toleration._--The revolution is justly entitled to honour +as the era of religious, in a far greater degree than of civil +liberty; the privileges of conscience having had no earlier magna +charta and petition of right whereto they could appeal against +encroachment. Civil, indeed, and religious liberty had appeared, not +as twin sisters and co-heirs, but rather in jealous and selfish +rivalry; it was in despite of the law, it was through infringement of +the constitution, by the court's connivance, by the dispensing +prerogative, by the declarations of indulgence under Charles and +James, that some respite had been obtained from the tyranny which +those who proclaimed their attachment to civil rights had always +exercised against one class of separatists, and frequently against +another. + +At the time when the test law was enacted, chiefly with a view against +popery, but seriously affecting the protestant nonconformists, it was +the intention of the House of Commons to afford relief to the latter +by relaxing in some measure the strictness of the act of uniformity in +favour of such ministers as might be induced to conform, by granting +an indulgence of worship to those who should persist in their +separation. This bill however dropped in that session. Several more +attempts at an union were devised by worthy men of both parties in +that reign, but with no success. It was the policy of the court to +withstand a comprehension of dissenters; nor would the bishops admit +of any concession worth the others' acceptance. The high-church party +would not endure any mention of indulgence.[257] In the parliament of +1680, a bill to relieve protestant dissenters from the penalties of +the 35th of Elizabeth, the most severe act in force against them, +having passed both houses, was lost off the table of the House of +Lords, at the moment that the king came to give his assent; an +artifice by which he evaded the odium of an explicit refusal.[258] +Meanwhile the nonconforming ministers, and in many cases their +followers, experienced a harassing persecution under the various penal +laws that oppressed them; the judges, especially in the latter part of +this reign, when some good magistrates were gone, and still more the +justices of the peace, among whom a high-church ardour was prevalent, +crowding the gaols with the pious confessors of puritanism.[259] Under +so rigorous an administration of statute law, it was not unnatural to +take the shelter offered by the declaration of indulgence; but the +dissenters never departed from their ancient abhorrence of popery and +arbitrary power, and embraced the terms of reconciliation and alliance +which the church, in its distress, held out to them. A scheme of +comprehension was framed under the auspices of Archbishop Sancroft +before the revolution. Upon the completion of the new settlement it +was determined, with the apparent concurrence of the church, to grant +an indulgence to separate conventicles, and at the same time, by +enlarging the terms of conformity, to bring back those whose +differences were not irreconcilable within the pale of the Anglican +communion. + +The act of toleration was passed with little difficulty, though not +without the murmurs of the bigoted churchmen.[260] It exempts from the +penalties of existing statutes against separate conventicles, or +absence from the established worship, such as should take the oath of +allegiance, and subscribe the declaration against popery, and such +ministers of separate congregations as should subscribe the +thirty-nine articles of the church of England except three, and part +of a fourth. It gives also an indulgence to quakers without this +condition. Meeting-houses are required to be registered, and are +protected from insult by a penalty. No part of this toleration is +extended to papists or to such as deny the Trinity. We may justly deem +this act a very scanty measure of religious liberty; yet it proved +more effectual through the lenient and liberal policy of the +eighteenth century; the subscription to articles of faith, which soon +became as obnoxious as that to matters of a more indifferent nature, +having been practically dispensed with, though such a genuine +toleration as Christianity and philosophy alike demand, had no place +in our statute-book before the reign of George III. + +It was found more impracticable to overcome the prejudices which stood +against any enlargement of the basis of the English church. The bill +of comprehension, though nearly such as had been intended by the +primate, and conformable to the plans so often in vain devised by the +most wise and moderate churchmen, met with a very cold reception. +Those among the clergy who disliked the new settlement of the Crown +(and they were by far the greater part), played upon the ignorance and +apprehensions of the gentry. The king's suggestion in a speech from +the throne, that means should be found to render all protestants +capable of serving him in Ireland, as it looked towards a repeal or +modification of the test act, gave offence to the zealous +churchmen.[261] A clause proposed in the bill for changing the oaths +of supremacy and allegiance, in order to take away the necessity of +receiving the sacrament in the church as a qualification for office, +was rejected by a great majority of the Lords, twelve whig peers +protesting.[262] Though the bill of comprehension proposed to +parliament went no farther than to leave a few scrupled ceremonies at +discretion, and to admit presbyterian ministers into the church +without pronouncing on the invalidity of their former ordination, it +was mutilated in passing through the upper house; and the Commons, +after entertaining it for a time, substituted an address to the king, +that he would call the house of convocation "to be advised with in +ecclesiastical matters."[263] It was, of course, necessary to follow +this recommendation. But the lower house of convocation, as might be +foreseen, threw every obstacle in the way of the king's enlarged +policy. They chose a man as their prolocutor who had been forward in +the worst conduct of the university of Oxford. They displayed in +everything a factious temper, which held the very names of concession +and conciliation in abhorrence. Meanwhile a commission of divines, +appointed under the great seal, had made a revision of the liturgy, in +order to eradicate everything which could give a plausible ground of +offence, as well as to render the service more perfect. Those of the +high-church faction had soon seceded from this commission; and its +deliberations were doubtless the more honest and rational for their +absence. But, as the complacence of parliament towards ecclesiastical +authority had shown that no legislative measure could be forced +against the resistance of the lower house of convocation, it was not +thought expedient to lay before that synod of insolent priests the +revised liturgy, which they would have employed as an engine of +calumny against the bishops and the Crown. The scheme of +comprehension, therefore, fell absolutely and finally to the +ground.[264] + +_Schism of the non-jurors._--A similar relaxation of the terms of +conformity would, in the reign of Elizabeth, or even at the time of +the Savoy conferences, have brought back so large a majority of +dissenters that the separation of the remainder could not have +afforded any colour of alarm to the most jealous dignitary. Even now +it is said that two-thirds of the nonconformists would have embraced +the terms of reunion. But the motives of dissent were already somewhat +changed, and had come to turn less on the petty scruples of the elder +puritans and on the differences in ecclesiastical discipline, than on +a dislike to all subscriptions of faith and compulsory uniformity. The +dissenting ministers, accustomed to independence, and finding not +unfrequently in the contributions of their disciples a better +maintenance than court favour and private patronage have left for +diligence and piety in the establishment, do not seem to have much +regretted the fate of this measure. None of their friends, in the most +favourable times, have ever made an attempt to renew it. There are +indeed serious reasons why the boundaries of religious communion +should be as widely extended as is consistent with its end and nature; +and among these the hardship and detriment of excluding conscientious +men from the ministry is not the least. Nor is it less evident that +from time to time, according to the progress of knowledge and reason, +to remove defects and errors from the public service of the church, +even if they have not led to scandal or separation, is the bounden +duty of its governors. But none of these considerations press much on +the minds of statesmen; and it was not to be expected that any +administration should prosecute a religious reform for its own sake, +at the hazard of that tranquillity and exterior unity which is in +general the sole end for which they would deem such a reform worth +attempting. Nor could it be dissembled that, so long as the endowments +of a national church are supposed to require a sort of politic +organisation within the commonwealth, and a busy spirit of faction +for their security, it will be convenient for the governors of the +state, whenever they find this spirit adverse to them, as it was at +the revolution, to preserve the strength of the dissenting sects as a +counterpoise to that dangerous influence which, in protestant +churches, as well as that of Rome, has sometimes set up the interest +of one order against that of the community. And though the church of +England made a high vaunt of her loyalty, yet, as Lord Shrewsbury told +William of the tories in general, he must remember that he was not +their king; of which indeed he had abundant experience. + +A still more material reason against any alteration in the public +liturgy and ceremonial religion at that feverish crisis, unless with a +much more decided concurrence of the nation than could be obtained, +was the risk of nourishing the schism of the non-jurors. These men +went off from the church on grounds merely political, or at most on +the pretence that the civil power was incompetent to deprive bishops +of their ecclesiastical jurisdiction; to which none among the laity, +who did not adopt the same political tenets, were likely to pay +attention. But the established liturgy was, as it is at present, in +the eyes of the great majority, the distinguishing mark of the +Anglican church, far more indeed than episcopal government, whereof so +little is known by the mass of the people that its abolition would +make no perceptible difference in their religion. Any change, though +for the better, would offend those prejudices of education and habit, +which it requires such a revolutionary commotion of the public mind as +the sixteenth century witnessed, to subdue, and might fill the +jacobite conventicles with adherents to the old church. It was already +the policy of the non-juring clergy to hold themselves up in this +respectable light, and to treat the Tillotsons and Burnets as equally +schismatic in discipline and unsound in theology. Fortunately, +however, they fell into the snare which the established church had +avoided; and deviating, at least in their writings, from the received +standard of Anglican orthodoxy, into what the people saw with most +jealousy, a sort of approximation to the church of Rome, gave their +opponents an advantage in controversy, and drew farther from that part +of the clergy who did not much dislike their political creed. They +were equally injudicious and neglectful of the signs of the times, +when they promulgated such extravagant assertions of sacerdotal power +as could not stand with the regal supremacy, or any subordination to +the state. It was plain, from the writings of Leslie and other +leaders of their party, that the mere restoration of the house of +Stuart would not content them, without undoing all that had been +enacted as to the church from the time of Henry VIII.; and thus the +charge of innovation came evidently home to themselves.[265] + +The convention parliament would have acted a truly politic, as well as +magnanimous, part in extending this boon, or rather this right, of +religious liberty to the members of that unfortunate church, for whose +sake the late king had lost his throne. It would have displayed to +mankind that James had fallen, not as a catholic, nor for seeking to +bestow toleration on catholics, but as a violator of the constitution. +William, in all things superior to his subjects, knew that temporal, +and especially military fidelity, would be in almost every instance +proof against the seductions of bigotry. The Dutch armies have always +been in a great measure composed of catholics; and many of that +profession served under him in the invasion of England. His own +judgment for the repeal of the penal laws had been declared even in +the reign of James. The danger, if any, was now immensely diminished; +and it appears in the highest degree probable that a genuine +toleration of their worship, with no condition but the oath of +allegiance, would have brought over the majority of that church to the +protestant succession, so far at least as to engage in no schemes +inimical to it. The wiser catholics would have perceived that, under a +king of their own faith, or but suspected of an attachment to it, they +must continue the objects of perpetual distrust to a protestant +nation. They would have learned that conspiracy and jesuitical +intrigue could but keep alive calumnious imputations, and diminish the +respect which a generous people would naturally pay to their sincerity +and their misfortune. Had the legislators of that age taken a still +larger sweep, and abolished at once those tests and disabilities, +which, once necessary bulwarks against an insidious court, were no +longer demanded in the more republican model of our government, the +jacobite cause would have suffered, I believe, a more deadly wound +than penal statutes and double taxation were able to inflict. But this +was beyond the philosophers, how much beyond the statesmen, of the +time! + +_Laws against Roman catholics._--The tories, in their malignant hatred +of our illustrious monarch, turned his connivance at popery into a +theme of reproach.[266] It was believed, and probably with truth, that +he had made to his catholic allies promises of relaxing the penal +laws; and the jacobite intriguers had the mortification to find that +William had his party at Rome, as well as her exiled confessor of St. +Germains. After the peace of Ryswick many priests came over, and +showed themselves with such incautious publicity as alarmed the +bigotry of the House of Commons, and produced the disgraceful act of +1700 against the growth of popery.[267] The admitted aim of this +statute was to expel the catholic proprietors of land, comprising many +very ancient and wealthy families, by rendering it necessary for them +to sell their estates. It first offers a reward of L100 to any +informer against a priest exercising his functions, and adjudges the +penalty of perpetual imprisonment. It requires every person educated +in the popish religion, or professing the same, within six months +after he shall attain the age of eighteen years, to take the oaths of +allegiance and supremacy, and subscribe the declaration set down in +the act of Charles II. against transubstantiation and the worship of +saints; in default of which he is incapacitated, not only to purchase, +but to inherit or take lands under any devise or limitation. The next +of kin being a protestant shall enjoy such lands during his +life.[268] So unjust, so unprovoked a persecution is the disgrace of +that parliament. But the spirit of liberty and tolerance was too +strong for the tyranny of the law; and this statute was not executed +according to its purpose. The catholic land-holders neither renounced +their religion, nor abandoned their inheritances. The judges put such +constructions upon the clause of forfeiture as eluded its efficacy; +and, I believe, there were scarce any instances of a loss of property +under this law. It has been said, and I doubt not with justice, that +the catholic gentry, during the greater part of the eighteenth +century, were as a separated and half proscribed class among their +equals, their civil exclusion hanging over them in the intercourse of +general society;[269] but their notorious, though not unnatural, +disaffection to the reigning family will account for much of this, and +their religion was undoubtedly exercised with little disguise or +apprehension. The laws were perhaps not much less severe and +sanguinary than those which oppressed the protestants of France; but, +in their actual administration, what a contrast between the government +of George II. and Louis XV., between the gentleness of an English +court of king's bench, and the ferocity of the parliaments of Aix and +Thoulouse! + +_Act of settlement._--The immediate settlement of the Crown at the +revolution extended only to the descendants of Anne and of William. +The former was at that time pregnant, and became in a few months the +mother of a son. Nothing therefore urged the convention-parliament to +go any farther in limiting the succession. But the king, in order to +secure the elector of Hanover to the grand alliance, was desirous to +settle the reversion of the Crown on his wife the Princess Sophia and +her posterity. A provision to this effect was inserted in the bill of +rights by the House of Lords. But the Commons rejected the amendment +with little opposition; not, as Burnet idly insinuates through the +secret wish of a republican party (which never existed, or had no +influence) to let the monarchy die a natural death, but from a just +sense that the provision was unnecessary and might become +inexpedient.[270] During the life of the young Duke of Gloucester the +course of succession appeared clear. But upon his untimely death in +1700, the manifest improbability that the limitations already +established could subsist beyond the lives of the king and Princess of +Denmark made it highly convenient to preclude intrigue, and cut off +the hopes of the jacobites, by a new settlement of the Crown on a +protestant line of princes. Though the choice was truly free in the +hands of parliament, and no pretext of absolute right could be +advanced on any side, there was no question that the Princess Sophia +was the fittest object of the nation's preference. She was indeed very +far removed from any hereditary title. Besides the pretended Prince of +Wales, and his sister, whose legitimacy no one disputed, there stood +in her way the Duchess of Savoy, daughter of Henrietta Duchess of +Orleans, and several of the Palatine family. These last had abjured +the reformed faith, of which their ancestors had been the strenuous +assertors; but it seemed not improbable that some one might return to +it; and, if all hereditary right of the ancient English royal line, +the descendant of Henry VII., had not been extinguished, it would have +been necessary to secure the succession of any prince, who should +profess the protestant religion at the time when the existing +limitations should come to an end. Nor indeed, on the supposition that +the next heir had a right to enjoy the Crown, would the act of +settlement have been required.[271] According to the tenor and +intention of this statute, all prior claims of inheritance, save that +of the issue of King William and the Princess Anne, being set aside +and annulled, the Princess Sophia became the source of a new royal +line. The throne of England and Ireland, by virtue of the paramount +will of parliament, stands entailed upon the heirs of her body, being +protestants. In them the right is as truly hereditary as it ever was +in the Plantagenets or the Tudors. But they derive it not from those +ancient families. The blood indeed of Cerdic and of the Conqueror +flows in the veins of his present majesty. Our Edwards and Henries +illustrate the almost unrivalled splendour and antiquity of the house +of Brunswick. But they have transmitted no more right to the +allegiance of England than Boniface of Este or Henry the Lion. That +rests wholly on the act of settlement, and resolves itself into the +sovereignty of the legislature. We have therefore an abundant security +that no prince of the house of Brunswick will ever countenance the +silly theories of imprescriptible right, which flattery and +superstition seem still to render current in other countries. He would +brand his own brow with the names of upstart and usurper. For the +history of the revolution, and of that change in the succession which +ensued upon it, will for ages to come be fresh and familiar as the +recollections of yesterday. And if the people's choice be, as surely +it is, the primary foundation of magistracy, it is perhaps more +honourable to be nearer the source than to deduce a title from some +obscure chieftain, through a long roll of tyrants and idiots. + +The majority of that House of Commons which passed the bill of +settlement consisted of those who having long opposed the +administration of William, though with very different principles both +as to the succession of the Crown and its prerogative, were now often +called by the general name of tories. Some, no doubt, of these were +adverse to a measure which precluded the restoration of the house of +Stuart, even on the contingency that its heir might embrace the +protestant religion. But this party could not show itself very openly; +and Harley, the new leader of the tories, zealously supported the +entail of the Crown on the Princess Sophia. But it was determined to +accompany this settlement with additional securities for the subject's +liberty. The bill of rights was reckoned hasty and defective; some +matters of great importance had been omitted, and in the twelve years +which had since elapsed, new abuses had called for new remedies. Eight +articles were therefore inserted in the act of settlement, to take +effect only from the commencement of the new limitation to the house +of Hanover. Some of them, as will appear, sprung from a natural +jealousy of this unknown and foreign line; some should strictly not +have been postponed so long; but it is necessary to be content with +what it is practicable to obtain. These articles are the following:-- + +That whosoever shall hereafter come to the possession of this Crown, +shall join in communion with the church of England as by law +established. + +That in case the Crown and imperial dignity of this realm shall +hereafter come to any person, not being a native of this kingdom of +England, this nation be not obliged to engage in any war for the +defence of any dominions or territories which do not belong to the +Crown of England, without the consent of parliament. + +That no person who shall hereafter come to the possession of this +Crown, shall go out of the dominions of England, Scotland, or Ireland, +without consent of parliament. + +That from and after the time that the further limitation by this act +shall take effect, all matters and things relating to the well +governing of this kingdom, which are properly cognisable in the privy +council by the laws and customs of this realm, shall be transacted +there, and all resolutions taken thereupon shall be signed by such of +the privy council as shall advise and consent to the same. + +That, after the said limitation shall take effect as aforesaid, no +person born out of the kingdoms of England, Scotland, or Ireland, or +the dominions thereunto belonging (although he be naturalised or made +a denizen--except such as are born of English parents), shall be +capable to be of the privy council, or a member of either house of +parliament, or to enjoy any office or place of trust, either civil or +military, or to have any grant of lands, tenements, or hereditaments, +from the Crown, to himself, or to any other or others in trust for +him. + +That no person who has an office or place of profit under the king, or +receives a pension from the Crown, shall be capable of serving as a +member of the House of Commons. + +That, after the said limitation shall take effect as aforesaid, +judges' commissions be made quamdiu se bene gesserint, and their +salaries ascertained and established; but, upon the address of both +houses of parliament, it may be lawful to remove them. + +That no pardon under the great seal of England be pleadable to an +impeachment by the Commons in parliament.[272] + +The first of these provisions was well adapted to obviate the jealousy +which the succession of a new dynasty, bred in a protestant church not +altogether agreeing with our own, might excite in our susceptible +nation. A similar apprehension of foreign government produced the +second article, which so far limits the royal prerogative that any +minister who could be proved to have advised or abetted a declaration +of war in the specified contingency would be criminally responsible to +parliament.[273] The third article was repealed very soon after the +accession of George I., whose frequent journeys to Hanover were an +abuse of the graciousness with which the parliament consented to annul +the restriction.[274] + +_Privy council superseded by a cabinet._--A very remarkable alteration +that had been silently wrought in the course of the executive +government, gave rise to the fourth of the remedial articles in the +act of settlement. According to the original constitution of our +monarchy, the king had his privy council composed of the great +officers of state, and of such others as he should summon to it, bound +by an oath of fidelity and secrecy, by whom all affairs of weight, +whether as to domestic or exterior policy, were debated for the most +part in his presence, and determined, subordinately of course to his +pleasure, by the vote of the major part. It could not happen but that +some counsellors more eminent than the rest should form juntos or +cabals, for more close and private management, or be selected as more +confidential advisers of their sovereign; and the very name of a +cabinet council, as distinguished from the large body, may be found as +far back as the reign of Charles I. But the resolutions of the Crown, +whether as to foreign alliances or the issuing of proclamations and +orders at home, or any other overt act of government, were not finally +taken without the deliberation and assent of that body whom the law +recognised as its sworn and notorious counsellors. This was first +broken in upon after the restoration, and especially after the fall of +Clarendon, a strenuous assertor of the rights and dignity of the privy +council. "The king," as he complains, "had in his nature so little +reverence and esteem for antiquity, and did in truth so much contemn +old orders, forms, and institutions, that the objection of novelty +rather advanced than obstructed any proposition."[275] He wanted to be +absolute on the French plan, for which both he and his brother, as the +same historian tells us, had a great predilection, rather than obtain +a power little less arbitrary, so far at least as private rights were +concerned, on the system of his three predecessors. The delays and the +decencies of a regular council, the continual hesitation of lawyers, +were not suited to his temper, his talents, or his designs. And it +must indeed be admitted that the privy council, even as it was then +constituted, was too numerous for the practical administration of +supreme power. Thus by degrees it became usual for the ministry or +cabinet to obtain the king's final approbation of their measures, +before they were laid, for a merely formal ratification, before the +council. It was one object of Sir William Temple's short-lived scheme +in 1679 to bring back the ancient course; the king pledging himself on +the formation of his new privy council to act in all things by its +advice. + +_Exclusion of placemen and pensioners from parliament._--During the +reign of William, this distinction of the cabinet from the privy +council, and the exclusion of the latter from all business of state +became more fully established.[276] This however produced a serious +consequence as to the responsibility of the advisers of the Crown; and +at the very time when the controlling and chastising power of +parliament was most effectually recognised, it was silently eluded by +the concealment in which the objects of its enquiry could wrap +themselves. Thus, in the instance of a treaty which the House of +Commons might deem mischievous and dishonourable, the chancellor +setting the great seal to it would of course be responsible; but it is +not so evident that the first lord of the treasury, or others more +immediately advising the Crown on the course of foreign policy, could +be liable to impeachment with any prospect of success, for an act in +which their participation could not be legally proved. I do not mean +that evidence may not possibly be obtained which would affect the +leaders of a cabinet, as in the instances of Oxford and Bolingbroke; +but that, the cabinet itself having no legal existence, and its +members being surely not amenable to punishment in their simple +capacity of privy counsellors, which they generally share, in modern +times, with a great number even of their adversaries, there is no +tangible character to which responsibility is attached; nothing, +except a signature or the setting of a seal, from which a bad minister +need entertain any further apprehension than that of losing his post +and reputation.[277] It may be that no absolute corrective is +practicable for this apparent deficiency in our constitutional +security; but it is expedient to keep it well in mind, because all +ministers speak loudly of their responsibility, and are apt, upon +faith of this imaginary guarantee, to obtain a previous confidence +from parliament which they may in fact abuse with impunity. For should +the bad success or detected guilt of their measures raise a popular +cry against them, and censure or penalty be demanded by their +opponents, they will infallibly shroud their persons in the dark +recesses of the cabinet, and employ every art to shift off the burthen +of individual liability. + +William III., from the reservedness of his disposition as well as from +the great superiority of his capacity for affairs to any of our former +kings, was far less guided by any responsible counsellors than the +spirit of our constitution requires. In the business of the partition +treaty, which, whether rightly or otherwise, the House of Commons +reckoned highly injurious to the public interest, he had not even +consulted his cabinet; nor could any minister, except the Earl of +Portland and Lord Somers, be proved to have had a concern in the +transaction; for, though the house impeached Lord Orford and Lord +Halifax, they were not in fact any farther parties to it than by being +in the secret, and the former had shown his usual intractability by +objecting to the whole measure. This was undoubtedly such a departure +from sound constitutional usage as left parliament no control over the +executive administration. It was endeavoured to restore the ancient +principle by this provision in the act of settlement, that, after the +accession of the house of Hanover, all resolutions as to government +should be debated in the privy council, and signed by those present. +But, whether it were that real objections were found to stand in the +way of this article, or that ministers shrunk back from so definite a +responsibility, they procured its repeal a very few years +afterwards.[278] The plans of government are discussed and determined +in a cabinet council, forming indeed part of the larger body, but +unknown to the law by any distinct character or special appointment. I +conceive, though I have not the means of tracing the matter clearly, +that this change has prodigiously augmented the direct authority of +the secretaries of state, especially as to the interior department, +who communicate the king's pleasure in the first instance to +subordinate officers and magistrates, in cases which, down at least to +the time of Charles I., would have been determined in council. But +proclamations and orders still emanate, as the law requires, from the +privy council; and on some rare occasions, even of late years, matters +of domestic policy have been referred to their advice. It is generally +understood, however, that no counsellor is to attend, except when +summoned;[279] so that, unnecessarily numerous as the council has +become, in order to gratify vanity by a titular honour, these special +meetings consist only of a few persons besides the actual ministers of +the cabinet, and give the latter no apprehension of a formidable +resistance. Yet there can be no reasonable doubt that every counsellor +is as much answerable for the measures adopted by his consent, and +especially when ratified by his signature, as those who bear the name +of ministers, and who have generally determined upon them before he is +summoned. + +The experience of William's partiality to Bentinck and Keppel, in the +latter instance not very consistent with the good sense and dignity of +his character, led to a strong measure of precaution against the +probable influence of foreigners under the new dynasty; the exclusion +of all persons not born within the dominions of the British Crown from +every office of civil and military trust, and from both houses of +parliament. No other country, as far as I recollect, has adopted so +sweeping a disqualification; and it must, I think, be admitted that it +goes a greater length than liberal policy can be said to warrant. But +the narrow prejudices of George I. were well restrained by this +provision from gratifying his corrupt and servile German favourites +with lucrative offices.[280] + +The next article is of far more importance; and would, had it +continued in force, have perpetuated that struggle between the +different parts of the legislature, especially the Crown and House of +Commons, which the new limitations of the monarchy were intended to +annihilate. The baneful system of rendering the parliament subservient +to the administration, either by offices and pensions held at +pleasure, or by more clandestine corruption, had not ceased with the +house of Stuart. William, not long after his accession, fell into the +worst part of this management, which it was most difficult to prevent; +and, according to the practice of Charles's reign, induced by secret +bribes the leaders of parliamentary opposition to betray their cause +on particular questions. The tory patriot, Sir Christopher Musgrave, +trod in the steps of the whig patriot, Sir Thomas Lee. A large +expenditure appeared every year, under the head of secret service +money; which was pretty well known, and sometimes proved, to be +disposed of, in great part, among the members of both houses.[281] No +check was put on the number or quality of placemen in the lower +house. New offices were continually created, and at unreasonable +salaries. Those who desired to see a regard to virtue and liberty in +the parliament of England could not be insensible to the enormous +mischief of this influence. If some apology might be offered for it in +the precarious state of the revolution government, this did not take +away the possibility of future danger, when the monarchy should have +regained its usual stability. But in seeking for a remedy against the +peculiar evil of the times, the party in opposition to the court +during this reign, whose efforts at reformation were too frequently +misdirected, either through faction or some sinister regards towards +the deposed family, went into the preposterous extremity of banishing +all servants of the Crown from the House of Commons. Whether the bill +for free and impartial proceedings in parliament, which was rejected +by a very small majority of the House of Lords in 1693, and having in +the next session passed through both houses, met with the king's +negative, to the great disappointment and displeasure of the Commons, +was of this general nature, or excluded only certain specified +officers of the Crown, I am not able to determine; though the prudence +and expediency of William's refusal must depend entirely upon that +question.[282] But in the act of settlement, the clause is quite +without exception; and, if it had ever taken effect, no minister could +have had a seat in the House of Commons, to bring forward, explain, or +defend the measures of the executive government. Such a separation and +want of intelligence between the Crown and parliament must either have +destroyed the one, or degraded the other. The House of Commons would +either, in jealousy and passion, have armed the strength of the people +to subvert the monarchy, or, losing that effective control over the +appointment of ministers, which has sometimes gone near to their +nomination, would have fallen almost into the condition of those +states-general of ancient kingdoms, which have met only to be cajoled +into subsidies, and give a passive consent to the propositions of the +court. It is one of the greatest safeguards of our liberty, that +eloquent and ambitious men, such as aspire to guide the councils of +the Crown, are from habit and use so connected with the houses of +parliament, and derive from them so much of their renown and +influence, that they lie under no temptation, nor could without +insanity be prevailed upon, to diminish the authority and privileges +of that assembly. No English statesman, since the revolution, can be +liable to the very slightest suspicion of an aim, or even a wish, to +establish absolute monarchy on the ruins of our constitution. Whatever +else has been done, or designed to be done amiss, the rights of +parliament have been out of danger. They have, whenever a man of +powerful mind shall direct the cabinet, and none else can possibly be +formidable, the strong security of his own interest, which no such man +will desire to build on the caprice and intrigue of a court. And, as +this immediate connection of the advisers of the Crown with the House +of Commons, so that they are, and ever profess themselves, as truly +the servants of one as of the other, is a pledge for their loyalty to +the entire legislature, as well as to their sovereign (I mean, of +course, as to the fundamental principles of our constitution), so has +it preserved for the Commons their preponderating share in the +executive administration, and elevated them in the eyes of foreign +nations, till the monarchy itself has fallen comparatively into shade. +The pulse of Europe beats according to the tone of our parliament; the +counsels of our kings are there revealed, and by that kind of previous +sanction which it has been customary to obtain, become, as it were, +the resolutions of a senate; and we enjoy the individual pride and +dignity which belong to republicans, with the steadiness and +tranquillity which the supremacy of a single person has been supposed +peculiarly to bestow. + +But, if the chief ministers of the Crown are indispensably to be +present in one or other house of parliament, it by no means follows +that the doors should be thrown open to all those subaltern retainers, +who, too low to have had any participation in the measures of +government, come merely to earn their salaries by a sure and silent +vote. Unless some limitation could be put on the number of such +officers, they might become the majority of every parliament, +especially if its duration were indefinite or very long. It was always +the popular endeavour of the opposition, or, as it was usually +denominated, the country party, to reduce the number of these +dependants; and as constantly the whole strength of the court was +exerted to keep them up. William, in truth, from his own errors, and +from the disadvantage of the times, would not venture to confide in an +unbiassed parliament. On the formation, however, of a new board of +revenue, in 1694, for managing the stamp-duties, its members were +incapacitated from sitting in the House of Commons.[283] This, I +believe, is the first instance of exclusion on account of employment; +and a similar act was obtained in 1699, extending this disability to +the commissioners and some other officers of excise.[284] But when the +absolute exclusion of all civil and military officers by the act of +settlement was found, on cool reflection, too impracticable to be +maintained, and a revision of that article took place in the year +1706, the House of Commons were still determined to preserve at least +the principle of limitation, as to the number of placemen within their +walls. They gave way indeed to the other house in a considerable +degree, receding, with some unwillingness, from a clause specifying +expressly the description of offices which should not create a +disqualification, and consenting to an entire repeal of the original +article.[285] But they established two provisions of great importance, +which still continue the great securities against an overwhelming +influence: first, that every member of the House of Commons accepting +an office under the Crown, except a higher commission in the army, +shall vacate his seat, and a new writ shall issue; secondly, that no +person holding an office created since the 25th of October 1705, shall +be capable of being elected or re-elected at all. They excluded at the +same time all such as held pensions during the pleasure of the Crown; +and, to check the multiplication of placemen, enacted, that no greater +number of commissioners should be appointed to execute any office than +had been employed in its execution at some time before that +parliament.[286] These restrictions ought to be rigorously and +jealously maintained, and to receive a construction, in doubtful +cases, according to their constitutional spirit; not as if they were +of a penal nature towards individuals, an absurdity in which the +careless and indulgent temper of modern times might sometimes +acquiesce. + +_Independence of judges._--It had been the practice of the Stuarts, +especially in the last years of their dynasty, to dismiss judges, +without seeking any other pretence, who showed any disposition to +thwart government in political prosecutions. The general behaviour of +the bench had covered it with infamy. Though the real security for an +honest court of justice must be found in their responsibility to +parliament and to public opinion, it was evident that their tenure in +office must, in the first place, cease to be precarious, and their +integrity rescued from the severe trial of forfeiting the emoluments +upon which they subsisted. In the debates previous to the declaration +of rights, we find that several speakers insisted on making the +judges' commissions _quamdiu se bene gesserint_, that is, during life +or good behaviour, instead of _durante placito_, at the discretion of +the Crown. The former, indeed, is said to have been the ancient course +till the reign of James I. But this was omitted in the hasty and +imperfect bill of rights. The commissions however of William's judges +ran _quamdiu se bene gesserint_. But the king gave an unfortunate +instance of his very injudicious tenacity of bad prerogatives, in +refusing his assent, in 1692, to a bill that had passed both houses, +for establishing this independence of the judges by law and confirming +their salaries.[287] We owe this important provision to the act of +settlement; not as ignorance and adulation have perpetually asserted, +to his late majesty George III. No judge can be dismissed from office, +except in consequence of a conviction for some offence, or the address +of both houses of parliament, which is tantamount to an act of the +legislature.[288] It is always to be kept in mind that they are still +accessible to the hope of further promotion, to the zeal of political +attachment, to the flattery of princes and ministers; that the bias of +their prejudices, as elderly and peaceable men, will, in a plurality +of cases, be on the side of power; that they have very frequently been +trained, as advocates, to vindicate every proceeding of the Crown; +from all which we should look on them with some little vigilance, and +not come hastily to a conclusion that, because their commissions +cannot be vacated by the Crown's authority, they are wholly out of the +reach of its influence. I would by no means be misinterpreted, as if +the general conduct of our courts of justice since the revolution, and +especially in later times, which in most respects have been the best +times, were not deserving of that credit it has usually gained; but +possibly it may have been more guided and kept straight than some are +willing to acknowledge by the spirit of observation and censure which +modifies and controls our whole government. + +The last clause in the act of settlement, that a pardon under the +great seal shall not be pleadable in bar of an impeachment, requires +no particular notice beyond what has been said on the subject in a +former chapter.[289] + +_Oath of abjuration._--In the following session a new parliament +having been assembled, in which the tory faction had less influence +than in the last, and Louis XIV. having, in the meantime, acknowledged +the son of James as King of England, the natural resentment of this +insult and breach of faith was shown in a more decided assertion of +revolution principles than had hitherto been made. The pretended king +was attainted of high treason; a measure absurd as a law, but politic +as a denunciation of perpetual enmity.[290] It was made high treason +to correspond with him, or remit money for his service. And a still +more vigorous measure was adopted, an oath to be taken, not only by +all civil officers, but by all ecclesiastics, members of the +universities, and schoolmasters, acknowledging William as lawful and +rightful king, and denying any right or title in the pretended Prince +of Wales.[291] The tories, and especially Lord Nottingham, had +earnestly contended, in the beginning of the king's reign, against +those words on the act of recognition, which asserted William and Mary +to be rightfully and lawfully king and queen. They opposed the +association at the time of the assassination plot, on account of the +same epithets, taking a distinction which satisfied the narrow +understanding of Nottingham, and served as a subterfuge for more +cunning men, between a king whom they were bound in all cases to obey +and one whom they could style rightful and lawful. These expressions +were in fact slightly modified on that occasion; yet fifteen peers and +ninety-two commoners declined, at least for a time, to sign it. The +present oath of abjuration therefore was a signal victory of the whigs +who boasted of the revolution over the tories who excused it.[292] The +renunciation of the hereditary right, for at this time few of the +latter party believed in the young man's spuriousness, was complete +and unequivocal. The dominant faction might enjoy perhaps a charitable +pleasure in exposing many of their adversaries, and especially the +high church clergy, to the disgrace and remorse of perjury. Few or +none however who had taken the oath of allegiance, refused this +additional cup of bitterness, though so much less defensible, +according to the principles they had employed to vindicate their +compliance in the former instance; so true it is that, in matters of +conscience, the first scruple is the only one which it costs much to +overcome. But the imposition of this test, as was evident in a few +years, did not check the boldness, or diminish the numbers, of the +Jacobites; and I must confess, that of all sophistry that weakens +moral obligation, that is the most pardonable, which men employ to +escape from this species of tyranny. The state may reasonably make an +entire and heartfelt attachment to its authority the condition of +civil trust; but nothing more than a promise of peaceable obedience +can justly be exacted from those who ask only to obey in peace. There +was a bad spirit abroad in the church, ambitious, factious, +intolerant, calumnious; but this was not necessarily partaken by all +its members, and many excellent men might deem themselves hardly dealt +with in requiring their denial of an abstract proposition, which did +not appear so totally false according to their notions of the English +constitution and the church's doctrine.[293] + +FOOTNOTES: + +[152] _Parl. Hist._ v. 54. + +[153] _Parl. Hist._ v. 108. + +[154] Journals, 11 and 12 Feb. 1688-9. + +[155] _Parl. Hist._ 345. + +[156] Lords' Journals, 22 Nov. 1689. + +[157] The guards retained out of the old army disbanded at the king's +return, have been already mentioned to have amounted to about 5000 +men; though some assert their number at first to have been +considerably less. No objection seems to have been made at the time to +the continuance of these regiments. But in 1667, on the insult offered +to the coasts by the Dutch fleet, a great panic arising, 12,000 fresh +troops were hastily levied. The Commons, on July 25, came to an +unanimous resolution, that his majesty be humbly desired by such +members as are his privy council, that when a peace is concluded, the +new-raised forces be disbanded. The king, four days after, in a speech +to both houses, said, "he wondered what one thing he had done since +his coming into England, to persuade any sober person that he did +intend to govern by a standing army; he said he was more an Englishman +than to do so. He desired, for as much as concerned him, to preserve +the laws," etc. _Parl. Hist._ iv. 363. Next session the two houses +thanked him for having disbanded the late raised forces. _Id._ 369. +But in 1673, during the second Dutch war, a considerable force having +been levied, the House of Commons, after a warm debate, resolved (Nov. +3) that a standing army was a grievance. _Id._ 604. And on February +following, that the continuing of any standing forces in this nation, +other than the militia, is a great grievance and vexation to the +people; and that this house do humbly petition his majesty to cause +immediately to be disbanded that part of them that were raised since +Jan. 1, 1663. _Id._ 665. This was done not long afterwards; but early +in 1678, on the pretext of entering into a war with France, he +suddenly raised an army of 20,000 men or more, according to some +accounts, which gave so much alarm to the parliament, that they would +only vote supplies on condition that these troops should be +immediately disbanded. _Id._ 985. The king, however, employed the +money without doing so; and maintained, in the next session, that it +had been necessary to keep them on foot; intimating at the same time, +that he was now willing to comply, if the house thought it expedient +to disband the troops; which they accordingly voted, with unanimity, +to be necessary for the safety of his majesty's person, and +preservation of the peace of the government. Nov. 25. _Id._ 1049. +James showed, in his speech to parliament (Nov. 9, 1685) that he +intended to keep on foot a standing army. _Id._ 1371. But, though that +House of Commons was very differently composed from those in his +brother's reign, and voted as large a supply as the king required, +they resolved that a bill be brought in to render the militia more +useful; an oblique and timid hint of their disapprobation of a regular +force, against which several members had spoken. + +I do not find that any one, even in debate, goes the length of denying +that the king might, by his prerogative, maintain a regular army; none +at least of the resolutions in the Commons can be said to have that +effect. + +[158] It is expressly against the petition of right, to quarter troops +on the citizens, or to inflict any punishment by martial law. No court +martial, in fact, can have any coercive jurisdiction except by +statute; unless we should resort to the old tribunal of the constable +and marshal. And that this was admitted, even in bad times, we may +learn by an odd case in Sir Thomas Jones's _Reports_, 147 (Pasch. 33 +Car. 2, 1681). An action was brought for assault and false +imprisonment. The defendant pleaded that he was lieutenant-governor of +the isle of Scilly, and that the plaintiff was a soldier belonging to +the garrison, and that it was the ancient custom of the castle, that +if any soldier refused to render obedience, the governor might punish +him by imprisonment for a reasonable time; which he had therefore +done. The plaintiff demurred, and had judgment in his favour. By +demurring, he put it to the court to determine, whether this plea, +which is obviously fabricated in order to cover the want of any +general right to maintain discipline in this manner, were valid in +point of law; which they decided, as it appears, in the negative. + +In the next reign, however, an attempt was made to punish deserters +capitally, not by a court martial, but on the authority of an ancient +act of parliament. Chief-Justice Herbert is said to have resigned his +place in the King's Bench rather than come into this. Wright succeeded +him; and two deserters, having been convicted, were executed in +London. Ralph, 961. I cannot discover that there was anything illegal +in the proceeding; and therefore question a little Herbert's motive. +See 3 Inst. 96. + +[159] See several in the _Somers Tracts_, vol. x. One of these, a +"Letter to a Member of the Convention," by Dr. Sherlock, is very ably +written: and puts all the consequences of a change of government, as +to popular dissatisfaction, etc., much as they turned out, though, of +course, failing to show that a treaty with the king would be less open +to objection. Sherlock declined for a time to take the oaths; but, +complying afterwards, and writing in vindication, or at least excuse, +of the revolution, incurred the hostility of the Jacobites, and +impaired his own reputation by so interested a want of consistency; +for he had been the most eminent champion of passive obedience. Even +the distinction he found out, of the lawfulness of allegiance to a +king _de facto_, was contrary to his former doctrine. + +[160] 1 W. & M. c. 8. + +[161] The necessity of excluding men so conscientious, and several of +whom had very recently sustained so conspicuously the brunt of the +battle against King James, was very painful; and motives of policy, as +well as generosity, were not wanting in favour of some indulgence +towards them. On the other hand, it was dangerous to admit such a +reflection on the new settlement, as would be cast by its enemies, if +the clergy, especially the bishops, should be excused from the oath of +allegiance. The House of Lords made an amendment in the act requiring +this oath, dispensing with it in the case of ecclesiastical persons, +unless they should be called upon by the privy-council. This, it was +thought, would furnish a security for their peaceable demeanour, +without shocking the people and occasioning a dangerous schism. But +the Commons resolutely opposed this amendment, as an unfair +distinction, and derogatory to the king's title. _Parl. Hist._ 218; +Lords' Journals, 17 April 1689. The clergy, however, had six months +more time allowed them, in order to take the oath, than the possessors +of lay offices. + +Upon the whole, I think the reasons for deprivation greatly +preponderated. Public prayers for the king by name form part of our +liturgy; and it was surely impossible to dispense with the clergy's +reading them, which was as obnoxious as the oath of allegiance. Thus +the beneficed priests must have been excluded; and it was hardly +required to make an exception for the sake of a few bishops, even if +difficulties of the same kind would not have occurred in the exercise +of their jurisdiction, which hangs upon, and has a perpetual reference +to, the supremacy of the Crown. + +The king was empowered to reserve a third part of the value of their +benefices to any twelve of the recusant clergy. 1 W. & M. c. 8, s. 16. +But this could only be done at the expense of their successors; and +the behaviour of the nonjurors, who strained every nerve in favour of +the dethroned king, did not recommend them to the government. The +deprived bishops, though many of them through their late behaviour +were deservedly esteemed, cannot be reckoned among the eminent +characters of our church for learning or capacity. Sancroft, the most +distinguished of them, had not made any remarkable figure; and none of +the rest had any pretensions to literary credit. Those who filled +their places were incomparably superior. Among the non-juring clergy a +certain number were considerable men; but, upon the whole, the +well-affected part of the church, not only at the revolution, but for +fifty years afterwards, contained by far its most useful and able +members. Yet the effect of this expulsion was highly unfavourable to +the new government; and it required all the influence of a +latitudinarian school of divinity, led by Locke, which was very strong +among the laity under William, to counteract it. + +[162] Burnet; Ralph, 174, 179. + +[163] The parliamentary debates are full of complaints as to the +mismanagement of all things in Ireland. These might be thought hasty +or factious; but Marshal Schomberg's letters to the king yield them +strong confirmation. Dalrymple, Appendix, 26, etc. William's +resolution to take the Irish war on himself saved not only that +country but England. Our own constitution was won on the Boyne. The +star of the house of Stuart grew pale for ever on that illustrious +day, when James displayed again the pusillanimity which had cost him +his English crown. Yet the best friends of William dissuaded him from +going into Ireland, so imminent did the peril appear at home. +Dalrymple, _Id._ 97. "Things," says Burnet, "were in a very ill +disposition towards a fatal turn." + +[164] See the debates on this subject in the _Parliamentary History_, +which is a transcript from Anchitel Grey. The whigs, or at least some +hot-headed men among them, were certainly too much actuated by a +vindictive spirit, and consumed too much time on this necessary bill. + +[165] The prominent instance of Sawyer's delinquency, which caused his +expulsion, was his refusal of a writ of error to Sir Thomas Armstrong. +_Parl. Hist._ 516. It was notorious that Armstrong suffered by a legal +murder; and an attorney-general in such a case could not be reckoned +as free from personal responsibility as an ordinary advocate who +maintains a cause for his fee. The first resolution had been to give +reparation out of the estates of the judges and prosecutors to +Armstrong's family; which was, perhaps rightly, abandoned. + +The House of Lords, who, having a power to examine upon oath, are +supposed to sift the truth in such enquiries better than the Commons, +were not remiss in endeavouring to bring the instruments of Stuart +tyranny to justice. Besides the committee appointed on the very second +day of the convention, 23 Jan. 1689, to investigate the supposed +circumstances of suspicion as to the death of Lord Essex (a committee +renewed afterwards, and formed of persons by no means likely to have +abandoned any path that might lead to the detection of guilt in the +late king), another was appointed in the second session of the same +parliament (Lords' Journals, 2nd Nov. 1689) "to consider who were the +advisers and prosecutors of the _murders_ of Lord Russell, Col. +Sidney, Armstrong, Cornish, etc., and who were the advisers of issuing +out writs of _quo warrantos_ against corporations, and who were their +regulators, and also who were the public assertors of the dispensing +power." The examinations taken before this committee are printed in +the Lords' Journals, 20th Dec. 1699; and there certainly does not +appear any want of zeal to convict the guilty. But neither the law nor +the proofs would serve them. They could establish nothing against +Dudley North, the tory sheriff of 1683, except that he had named Lord +Russell's panel himself; which, though irregular and doubtless +ill-designed, had unluckily a precedent in the conduct of the famous +whig sheriff, Slingsby Bethell; a man who, like North, though on the +opposite side, cared more for his party than for decency and justice. +Lord Halifax was a good deal hurt in character by this report; and +never made a considerable figure afterwards. Burnet, 34. His +mortification led him to engage in an intrigue with the late king, +which was discovered; yet, I suspect that, with his usual versatility, +he again abandoned that cause before his death. Ralph, 467. The act of +grace (2 W. & M. c. 10) contained a small number of exceptions, too +many indeed for its name; but probably there would have been +difficulty in prevailing on the houses to pass it generally; and no +one was ever molested afterwards on account of his conduct before the +revolution. + +[166] _Parl. Hist._ 508 _et post_; Journals, 2nd and 10th Jan. 1689, +1690. Burnet's account is confused and inaccurate, as is very commonly +the case: he trusted, I believe, almost entirely to his memory. Ralph +and Somerville are scarce ever candid towards the whigs in this reign. + +[167] _Parl. Hist._ 150. + +[168] Burnet, 13; Ralph, 138, 194. Some of the lawyers endeavoured to +persuade the house that the revenue having been granted to James for +his life, devolved to William during the natural life of the former; a +technical subtlety against the spirit of the grant. Somers seems not +to have come into this; but it is hard to collect the sense of +speeches from Grey's memoranda. _Parl. Hist._ 139. It is not to be +understood that the tories universally were in favour of a grant for +life, and the whigs against it. But as the latter were the majority, +it was in their power, speaking of them as a party, to have carried +the measure. + +[169] _Parl. Hist._ 187. + +[170] _Parl. Hist._ 193. + +[171] _Parl. Hist._ iv. 1359. + +[172] Hatsell's _Precedents_, iii. 80 _et alibi_; Hargrave's +_Juridical Arguments_, i. 394. + +[173] 1 W. & M. sess. 2, c. 2. This was intended as a provisional act +"for the preventing all disputes and questions, concerning the +collecting, levying, and assuring the public revenue due and payable +in the reigns of the late kings Charles II. and James II., whilst the +better settling the same is under the consideration of the present +parliament." + +[174] 2 W. & M. c. 3. As a mark of respect, no doubt, to the king and +queen, it was provided that, if both should die, the successor should +only enjoy this revenue of excise till December 1683. In the debate on +this subject in the new parliament, the tories, except Seymour, were +for settling the revenue during the king's life; but many whigs spoke +on the other side. _Parl. Hist._ 552. The latter justly urged that the +amount of the revenue ought to be well known before they proceed to +settle it for an indefinite time. The tories, at that time, had great +hopes of the king's favour, and took this method of securing it. + +[175] Burnet, 35. + +[176] See the _Somers Tracts_, but still more the collection of _State +Tracts_ in the time of William III., in three volumes folio. These are +almost entirely on the whig side; and many of them, as I have +intimated in the text, lean so far toward republicanism as to assert +the original sovereignty of the people in very strong terms, and to +propose various changes in the constitution, such as a greater +equality in the representation. But I have not observed any one which +recommends, even covertly, the abolition of hereditary monarchy. + +[177] The sudden dissolution of this parliament cost him the hearts of +those who had made him king. Besides several temporary writings, +especially the "Impartial Inquiry" of the Earl of Warrington, an +honest and intrepid whig (Ralph, ii. 188), we have a letter from Mr. +Wharton (afterwards Marquis of Wharton) to the king, in Dalrymple, +Appendix, p. 80, on the change in his councils at this time, written +in a strain of bold and bitter expostulation, especially on the score +of his employing those who had been the servants of the late family, +alluding probably to Godolphin, who was indeed open to much exception. +"I wish," says Lord Shrewsbury in the same year, "you could have +established your party upon the moderate and honest-principled men of +both factions; but, as there be a necessity of declaring, I shall make +no difficulty to own my sense that your majesty and the government are +much more safe depending upon the whigs, whose designs, if any +against, are improbable, and remoter, than with the tories, who many +of them, questionless, would bring in King James; and the very best of +them, I doubt, have a regency still in their heads; for, though I +agree them to be the properest instruments to carry the prerogative +high, yet I fear they have so unreasonable a veneration for monarchy, +as not altogether to approve the foundation yours is built upon." +Shrewsbury _Correspond._ 15. + +[178] _Parl. Hist_. 575; Ralph, 194; Burnet, 41. Two remarkable +protests were entered on the journals of the Lords on occasion of this +bill; one by the whigs, who were outnumbered on a particular division, +and another by the tories on the passing of the bill. They are both +vehemently expressed, and are among the not very numerous instances +wherein the original whig and tory principles have been opposed to +each other. The tory protest was expunged by order of the house. It is +signed by eleven peers and six bishops, among whom were Stillingfleet +and Lloyd. The whig protest has but ten signatures. The convention had +already passed an act for preventing doubts concerning their own +authority (1 W. & M. stat. 1, c. 1), which could of course have no +more validity than they were able to give it. This bill had been much +opposed by the tories. _Parl. Hist._ v. 122. + +In order to make this clearer, it should be observed that the +convention which restored Charles II. not having been summoned by his +writ, was not reckoned by some royalist lawyers capable of passing +valid acts; and consequently all the statutes enacted by it were +confirmed by the authority of the next. Clarendon lays it down as +undeniable that such confirmation was necessary. Nevertheless, this +objection having been made in the court of King's Bench to one of +their acts, the judges would not admit it to be disputed; and said, +that the act being made by King, Lords, and Commons, they ought not +now to pry into any defects of the circumstances of calling them +together, neither would they suffer a point to be stirred, wherein the +estates of so many were concerned. Heath _v._ Pryn, 1 Ventris, 15. + +[179] Great indulgence was shown to the assertors of indefeasible +right. The Lords resolved, that there should be no penalty in the bill +to disable any person from sitting and voting in either house of +parliament. Journals, May 5, 1690. The bill was rejected in the +Commons by 192 to 178. Journals, April 26; _Parl. Hist._ 594; Burnet, +41, _ibid._ + +[180] Some English subjects took James's commission, and fitted out +privateers which attacked our ships. They were taken, and it was +resolved to try them as pirates; when Dr. Oldys, the king's advocate, +had the assurance to object that this could not be done, as if James +had still the prerogatives of a sovereign prince by the law of +nations. He was of course turned out, and the men hanged; but this is +one instance among many of the difficulty under which the government +laboured through the unfortunate distinction of _facto_ and _jure_. +Ralph, 423. The boards of customs and excise were filled by Godolphin +with Jacobites. _Shrewsb. Corresp._ 51. + +[181] The name of Carmarthen is perpetually mentioned among those whom +the late king reckoned his friends. Macpherson's _Papers_, i. 457, +etc. Yet this conduct was so evidently against his interest that we +may perhaps believe him insincere. William was certainly well aware +that an extensive conspiracy had been formed against his throne. It +was of great importance to learn the persons involved in it and their +schemes. May we not presume that Lord Carmarthen's return to his +ancient allegiance was feigned, in order to get an insight into the +secrets of that party? This has already been conjectured by Somerville +(p. 395) of Lord Sunderland, who is also implicated by Macpherson's +publication, and doubtless with higher probability; for Sunderland, +always a favourite of William, could not without insanity have plotted +the restoration of a prince he was supposed to have betrayed. It is +evident that William was perfectly master of the cabals of St. +Germain's. That little court knew it was betrayed; and the suspicion +fell on Lord Godolphin. Dalrymple, 189. But I think Sunderland and +Carmarthen more likely. + +I should be inclined to suspect that by some of this double treachery +the secret of Princess Anne's repentant letter to her father reached +William's ears. She had come readily, or at least without opposition, +into that part of the settlement which postponed her succession after +the death of Mary, for the remainder of the king's life. It would +indeed have been absurd to expect that William was to descend from his +throne in her favour; and her opposition could not have been of much +avail. But, when the civil list and revenue came to be settled, the +tories made a violent effort to secure an income of L70,000 a year to +her and her husband. _Parl. Hist._ 492. As this on one hand seemed +beyond all fair proportion to the income of the Crown, so the whigs +were hardly less unreasonable in contending that she should depend +altogether on the king's generosity; especially as by letters patent +in the late reign, which they affected to call in question, she had a +revenue of about L30,000. In the end, the house resolved to address +the king, that he would make the princess's income L50,000 in the +whole. This, however, left an irreconcilable enmity, which the +artifices of Marlborough and his wife were employed to aggravate. They +were accustomed, in the younger sister's little court, to speak of the +queen with severity, and of the king with rude and odious epithets. +Marlborough, however, went much farther. He brought that narrow and +foolish woman into his own dark intrigues with St. Germain's. She +wrote to her father, whom she had grossly, and almost openly, charged +with imposing a spurious child as Prince of Wales, supplicating his +forgiveness, and professing repentance for the part she had taken. +_Life of James_, 476; Macpherson's _Papers_, i. 241. + +If this letter, as cannot seem improbable, became known to William, we +shall have a more satisfactory explanation of the queen's invincible +resentment toward her sister than can be found in any other part of +their history. Mary refused to see the princess on her death-bed; +which shows more bitterness than suited her mild and religious temper, +if we look only to the public squabbles about the Churchills as its +motive. Burnet, 90; _Conduct of Duchess of Marlborough_, 41. But the +queen must have deeply felt the unhappy, though necessary, state of +enmity in which she was placed towards her father. She had borne a +part in a great and glorious enterprise, obedient to a woman's highest +duty; and had admirably performed those of the station to which she +was called; but still with some violation of natural sentiments, and +some liability to the reproach of those who do not fairly estimate the +circumstances of her situation: + +Infelix! utcunque ferant ea facta minores. + +Her sister, who had voluntarily trod the same path, who had misled her +into belief of her brother's illegitimacy, had now, from no real sense +of duty, but out of pique and weak compliance with cunning favourites, +solicited in a clandestine manner the late king's pardon, while his +malediction resounded in the ears of the queen. This feebleness and +duplicity made a sisterly friendship impossible. + +As for Lord Marlborough, he was among the first, if we except some +Scots renegades, who abandoned the cause of the revolution. He had so +signally broken the ties of personal gratitude in his desertion of the +king on that occasion, that, according to the severe remark of Hume, +his conduct required for ever afterwards the most upright, the most +disinterested, and most public-spirited behaviour to render it +justifiable. What then must we think of it, if we find in the whole of +this great man's political life nothing but ambition and rapacity in +his motives, nothing but treachery and intrigue in his means! He +betrayed and abandoned James, because he could not rise in his favour +without a sacrifice that he did not care to make; he abandoned William +and betrayed England, because some obstacles stood yet in the way of +his ambition. I do not mean only, when I say that he betrayed England, +that he was ready to lay her independence and liberty at the feet of +James II. and Louis XIV.; but that in one memorable instance he +communicated to the court of St. Germain's, and through that to the +court of Versailles, the secret of an expedition against Brest, which +failed in consequence with the loss of the commander and eight hundred +men. Dalrymple, iii. 13; _Life of James_, 522; Macpherson, i. 487. In +short, his whole life was such a picture of meanness and treachery +that one must rate military services very high indeed to preserve any +esteem for his memory. + +The private memoirs of James II. as well as the papers published by +Macpherson show us how little treason, and especially a double +treason, is thanked or trusted by those whom it pretends to serve. We +see that neither Churchill nor Russell obtained any confidence from +the banished king. Their motives were always suspected; and something +more solid than professions of loyalty was demanded, though at the +expense of their own credit. James could not forgive Russell for +saying that, if the French fleet came out, he must fight. Macpherson, +i. 242. If Providence in its wrath had visited this island once more +with a Stuart restoration, we may be sure that these perfidious +apostates would have been no gainers by the change. + +[182] During William's absence in Ireland in 1690, some of the whigs +conducted themselves in a manner to raise suspicions of their +fidelity; as appears by those most interesting letters of Mary +published by Dalrymple, which display her entire and devoted affection +to a husband of cold and sometimes harsh manners, but capable of deep +and powerful attachment, of which she was the chief object. I have +heard that the late proprietor of these royal letters was offended, +but not judiciously, with their publication; and that the black box of +King William that contained them has disappeared from Kensington. The +names of the Duke of Bolton, his son the Marquis of Winchester, the +Earl of Monmouth, Lord Montagu, and Major Wildman, occur as objects of +the queen's or her minister's suspicion. Dalrymple, Appendix, 107, +etc. But Carmarthen was desirous to throw odium on the whigs; and none +of these, except on one occasion Lord Winchester, appear to be +mentioned in the Stuart Papers. Even Monmouth, whose want both of +principle and sound sense might cause reasonable distrust, and who lay +at different times of his life under this suspicion of a Jacobite +intrigue, is never mentioned in Macpherson, or any other book of +authority, within my recollection. Yet it is evident generally that +there was a disaffected party among the whigs, or, as in the Stuart +Papers they were called, republicans, who entertained the baseless +project of restoring James upon terms. These were chiefly what were +called compounders, to distinguish them from the thorough-paced +royalists, or old tories. One person whom we should least suspect is +occasionally spoken of as inclined to a king whom he had been ever +conspicuous in opposing--the Earl of Devonshire; but the Stuart agents +often wrote according to their wishes rather than their knowledge; and +it seems hard to believe what is not rendered probable by any part of +his public conduct. + +[183] This fact apparently rests on good authority; it is repeatedly +mentioned in the Stuart Papers, and in the _Life of James_. Yet +Shrewsbury's letter to William, after Fenwick's accusation of him, +seems hardly consistent with the king's knowledge of the truth of that +charge in its full extent. I think that he served his master +faithfully as secretary, at least after some time, though his warm +recommendation of Marlborough "who has been with me since this news +[the failure of the attack on Brest] to offer his services with all +the expressions of duty and fidelity imaginable" (_Shrewsbury +Correspondence_, 47), is somewhat suspicious, aware as he was of that +traitor's connections. + +[184] Commons' Journals, Nov. 28 _et post_; Dalrymple, iii. 11; Ralph, +346. + +[185] _Id._ Jan. 11, 1692-3. + +[186] Burnet says, "the elections of parliament (1690) went generally +for men who would probably have declared for King James, if they could +have known how to manage matters for him."--P. 41. This is quite an +exaggeration; though the tories, some of whom were at this time in +place, did certainly succeed in several divisions. But parties had now +begun to be split; the Jacobite tories voting with the malcontent +whigs. Upon the whole, this House of Commons, like the next which +followed it, was well affected to the revolution settlement and to +public liberty. Whig and tory were becoming little more than +nicknames. + +[187] Macpherson's _State Papers_, i. 459. These were all tories, +except three or four. The great end James and his adherents had in +view, was to persuade Louis into an invasion of England; their +representations therefore are to be taken with much allowance, and in +some cases we know them to be false; as when James assures his brother +of Versailles that three parts at least in four of the English clergy +had not taken the oaths to William. _Id._ 409. + +[188] Macpherson, 433. _Somers Tracts_, xi. 94. This is a pamphlet of +the time, exposing the St. Germain faction, and James's unwillingness +to make concessions. It is confirmed by the most authentic documents. + +[189] Ralph, 350; _Somers Tracts_, x. 211. + +[190] Many of these Jacobite tracts are printed in the Somers +Collection, vol. x. The more we read of them, the more cause appears +for thankfulness that the nation escaped from such a furious party. +They confess, in general, very little error or misgovernment in James, +but abound with malignant calumnies on his successor. The name of +Tullia is repeatedly given to the mild and pious Mary. The best of +these libels is styled "Great Britain's just complaint" (p. 429), by +Sir James Montgomery, the false and fickle proto-apostate of whiggism. +It is written with singular vigour, and even elegance; and rather +extenuates than denies the faults of the late reign. + +[191] Ralph, 418. See the _Life of James_, 501. It contains chiefly an +absolute promise of pardon, a declaration that he would protect and +defend the church of England as established by law, and secure to its +members all the churches, universities, schools, and colleges, +together with its immunities, rights, and privileges, a promise not to +dispense with the test, and to leave the dispensing power in other +matters to be explained and limited by parliament, to give the royal +assent to bills for frequent parliaments, free elections, and +impartial trials, and to confirm such laws made under the present +usurpation as should be tendered to him by parliament. "The king," he +says himself, "was sensible he should be blamed by several of his +friends for submitting to such hard terms; nor was it to be wondered +at, if those who knew not the true condition of his affairs were +scandalised at it; but after all he had nothing else to do."--P. 505. +He was so little satisfied with the articles in this declaration +respecting the church of England, that he consulted several French and +English divines, all of whom, including Bossuet, after some +difference, came to an opinion that he could not in conscience +undertake to protect and defend an erroneous church. Their objection, +however, seems to have been rather to the expression than the plain +sense; for they agreed that he might promise to leave the protestant +church in possession of its endowments and privileges. Many too of the +English Jacobites, especially the non-juring bishops, were displeased +with the declaration, as limiting the prerogative; though it contained +nothing which they were not clamorous to obtain from William. P. 514. +A decisive proof how little that party cared for civil liberty, and +how little would have satisfied them at the revolution, if James had +put the church out of danger! The next paragraph is remarkable enough +to be extracted for the better confirmation of what I have just said. +"By this the king saw he had out-shot himself more ways than one in +this declaration; and therefore what expedient he would have found in +case he had been restored, not to put a force either upon his +conscience or honour, does not appear, because it never came to a +trial; but this is certain, his church of England friends absolved him +beforehand, and sent him word, that if he considered the preamble, and +the very terms of the declaration, he was not bound to stand by it, or +to put it out verbatim as it was worded; that the changing some +expressions and ambiguous terms, so long as what was principally aimed +at had been kept to, could not be called a receding from his +declaration, no more than a new edition of a book can be counted a +different work, though corrected and amended. And indeed the preamble +showed his promise was conditional, which they not performing, the +king could not be tied; for my Lord Middleton had writ, that, if the +king signed the declaration, those who took it engaged to restore him +in three or four months after; the king did his part, but their +failure must needs take off the king's future obligation." + +In a Latin letter, the original of which is written in James's own +hand, to Innocent XII., dated from Dublin, Nov. 26, 1689, he declares +himself "Catholicam fidem reducere in tria regna statuisse." _Somers +Tracts_, x. 552. Though this may have been drawn up by a priest, I +suppose the king understood what he said. It appears also by Lord +Balcarras's _Memoir_, that Lord Melfort had drawn up the declaration +as to indemnity and indulgence in such a manner, that the king might +break it whenever he pleased. _Somers Tracts_, xi. 517. + +[192] The protestants were treated with neglect and jealousy, whatever +might have been their loyalty, at the court of James, as they were +afterwards as that of his son. The incorrigibility of this Stuart +family is very remarkable. Kennet, pp. 638 and 738, enumerates many +instances. Sir James Montgomery, the Earl of Middleton, and others, +were shunned at the court of St. Germain as guilty of this sole crime +of heresy, unless we add that of wishing for legal securities. + +[193] James himself explicitly denies, in the extracts from his +_Life_, published by Macpherson, all participation in the scheme of +killing William, and says that he had twice rejected proposals for +bringing him off alive; though it is not true that he speaks of the +design with indignation, as some have pretended. It was very natural, +and very conformable to the principles of kings, and others besides +kings, in former times, that he should have lent an ear to this +project; and as to James's moral and religious character it was not +better than that of Clarendon, whom we know to have countenanced +similar designs for the assassination of Cromwell. In fact, the +received code of ethics has been improved in this respect. We may be +sure at least, that those who ran such a risk for James's sake +expected to be thanked and rewarded in the event of success. I cannot +therefore agree with Dalrymple, who says that nothing but the fury of +party could have exposed James to this suspicion. Though the proof +seems very short of conviction, there are some facts worthy of notice. +1. Burnet positively charges the late king with privity to the +conspiracy of Grandval, executed in Flanders for a design on William's +life, 1692 (p. 95); and this he does with so much particularity, and +so little hesitation, that he seems to have drawn his information from +high authority. The sentence of the court-martial on Grandval also +alludes to James's knowledge of the crime (_Somers Tracts_, x. 580), +and mentions expressions of his, which, though not conclusive, would +raise a strong presumption in any ordinary case. 2. William himself, +in a memorial intended to have been delivered to the ministers of all +the allied powers at Ryswick, in answer to that of James (_Id._ xi. +103; Ralph, 730), positively imputes to the latter repeated +conspiracies against his life; and he was incapable of saying what he +did not believe. In the same memorial he shows too much magnanimity to +assert that the birth of the Prince of Wales was an imposture. 3. A +paper by Charnock, undeniably one of the conspirators, addressed to +James, contains a marked allusion to William's possible death in a +short time; which even Macpherson calls a delicate mode of hinting the +assassination-plot to him. Macpherson, _State Papers_, i. 519. Compare +also _State Trials_, xii. 1323, 1327, 1329. 4. Somerville, though a +disbeliever in James's participation, has a very curious quotation +from Lamberti, tending to implicate Louis XIV. (p. 428); and we can +hardly suppose that he kept the other out of the secret. Indeed, the +crime is greater and less credible in Louis than in James. But devout +kings have odd notions of morality; and their confessors, I suppose, +much the same. I admit, as before, that the evidence falls short of +conviction; and that the verdict, in the language of Scots law, should +be Not Proven; but it is too much for our Stuart apologists to treat +the question as one absolutely determined. Documents may yet appear +that will change its aspect. + +I leave the above paragraph as it was written before the publication +of M. Mazure's valuable _History of the Revolution_. He has therein +brought to light a commission of James to Crosby, in 1693, authorising +and requiring him "to seize and secure the person of the Prince of +Orange, and to bring him before us, taking to your assistance such +other of our faithful subjects in whom you may place confidence." +_Hist. de la Revol._ iii. 443. It is justly observed by M. Mazure, +that Crosby might think no renewal of his authority necessary in 1696 +to do that which he had been required to do in 1693. If we look +attentively at James's own language, in Macpherson's extracts, without +much regarding the glosses of Innes, it will appear that he does not +deny in express terms that he had consented to the attempt in 1696 to +seize the Prince of Orange's person. In the commission to Crosby he is +required not only to do this, but _to bring him before the king_. But +is it possible to consider this language as anything else than an +euphemism for assassination? + +Upon the whole evidence, therefore, I now think that James was privy +to the conspiracy, of which the natural and inevitable consequence +must have been foreseen by himself; but I leave the text as it stood, +in order to show that I have not been guided by any prejudice against +his character. + +[194] _Parl. Hist._ 991. Fifteen peers and ninety-two commoners +refused. The names of the latter were circulated in a printed paper, +which the house voted to be a breach of their privilege, and +destruction of the freedom and liberties of parliament. Oct. 30, 1696. +This, however, shows the unpopularity of their opposition. + +[195] Burnet; see the notes on the Oxford edition. Ralph, 692. The +motion for bringing in the bill, Nov. 6, 1696, was carried by 169 to +61; but this majority lessened at every stage: and the final division +was only 189 to 156. In the Lords it passed by 68 to 61; several +whigs, and even the Duke of Devonshire, then lord steward, voting in +the minority. _Parl. Hist._ 996-1154. Marlborough probably made Prince +George of Denmark support the measure. _Shrewsbury Correspondence_, +449. Many remarkable letters on the subject are to be found in this +collection; but I warn the reader against trusting any part of the +volume except the letters themselves. The editor has, in defiance of +notorious facts, represented Sir John Fenwick's disclosures as false; +and twice charges him with prevarication (p. 404), using the word +without any knowledge of its sense, in declining to answer questions +put to him by members of the House of Commons, which he could not have +answered without inflaming the animosity that sought his life. + +It is said in a note of Lord Hardwicke on Burnet, that "the king, +before the session, had Sir John Fenwick brought to the cabinet +council, where he was present himself. But Sir John would not explain +his paper." See also _Shrewsbury Correspondence_, 419 _et post_. The +truth was, that Fenwick, having had his information at second-hand, +could not prove his assertions, and feared to make his case worse by +repeating them. + +[196] Godolphin, who was then first commissioner of the treasury, not +much to the liking of the whigs, seems to have been tricked by +Sunderland into retiring from office on this occasion. _Id._ 415. +Shrewsbury, secretary of state, could hardly be restrained by the king +and his own friends from resigning the seals as soon as he knew of +Fenwick's accusation. His behaviour shows either a consciousness of +guilt, or an inconceivable cowardice. Yet at first he wrote to the +king, pretending to mention candidly all that had passed between him +and the Earl of Middleton, which in fact amounted to nothing. P. 147. +This letter, however, seems to show that a story which has been +several times told, and is confirmed by the biographer of James II. +and by Macpherson's _Papers_, that William compelled Shrewsbury to +accept office in 1693, by letting him know that he was aware of his +connection with St. Germains, is not founded in truth. He could hardly +have written in such a style to the king with that fact in his way. +Monmouth, however, had some suspicion of it; as appears by the hints +he furnished to Sir J. Fenwick towards establishing the charges. P. 450. +Lord Dartmouth, full of inveterate prejudices against the king, charges +him with personal pique against Sir John Fenwick, and with instigating +members to vote for the bill. Yet it rather seems that he was, at +least for some time, by no means anxious for it. _Shrewsbury +Correspondence_; and compare Coxe's _Life of Marlborough_, i. 63. + +[197] _Life of James_, ii. 558. + +[198] The debt at the king's death amounted to L16,394,702, of which +above three millions were to expire in 1710. Sinclair's _Hist. of +Revenue_, i. 425 (third edition). + +Of this sum L664,263 was incurred before the revolution, being a part +of the money of which Charles II. had robbed the public creditor by +shutting up the exchequer. Interest was paid upon this down to 1683, +when the king stopped it. The legislature ought undoubtedly to have +done justice more effectually and speedily than by passing an act in +1699, which was not to take effect till December 25, 1705; from which +time the excise was charged with three per cent. interest on the +principal sum of L1,328,526, subject to be redeemed by payment of a +moiety. No compensation was given for the loss of so many years' +interest. 12 & 13 W. 3, c. 12, Sec. 15; Sinclair, i. 397; _State Trials_, +xiv. 1 _et post_. According to a particular statement in _Somers +Tracts_, xii. 383, the receipts of the exchequer, including loans, +during the whole reign of William, amounted to rather more than +L72,000,000. The author of the "Letter to the Rev. T. Carte," in +answer to the latter's "Letter to a Bystander," estimates the sums +raised under Charles II., from Christmas 1660 to Christmas 1684, at +L46,233,923. Carte had made them only L32,474,265. But his estimate is +evidently false and deceptive. Both reckon the gross produce, not the +exchequer payments. This controversy was about the year 1742. +According to Sinclair, _Hist. of Revenue_, i. 309, Carte had the last +word; but I cannot conceive how he answered the above-mentioned letter +to him. Whatever might be the relative expenditure of the two reigns, +it is evident that the war of 1689 was brought on, in a great measure, +by the corrupt policy of Charles II. + +[199] Davenant, "Essay on Ways and Means." In another of his tracts +(vol. ii. 266, edit. 1771) this writer computes the payments of the +state in 1688 at one shilling in the pound of the national income; but +after the war at two shillings and sixpence. + +[200] Godfrey's "Short Account of Bank of England," in _Somers +Tracts_, xi. 5; Kennet's _Complete Hist._ iii. 723; Ralph, 681; +_Shrewsbury Papers_; Macpherson's _Annals of Commerce_, A.D. 1697; +Sinclair's _Hist. of Revenue_. + +[201] "Nor is it true that the sea was neglected; for I think during +much the greater part of the war which began in 1689 we were entirely +masters of the sea, by our victory in 1692, which was only three years +after it broke out; so that for seven years we carried the _broom_. +And for any neglect of our sea affairs otherwise, I believe, I may in +a few words prove that all the princes since the Conquest never made +so remarkable an improvement to our naval strength as King William. He +(Swift) should have been told, if he did not know, what havoc the +Dutch had made of our shipping in King Charles the Second's reign; and +that his successor, King James the Second, had not in his whole navy, +fitted out to defeat the designed invasion of the Prince of Orange, an +individual ship of the first or second rank, which all lay neglected, +and mere skeletons of former services, at their moorings. These this +abused prince repaired at an immense charge, and brought them to their +pristine magnificence." "Answer to Swift's Conduct of the Allies," in +_Somers Tracts_, xiii. 247. + +[202] Dalrymple has remarked the important consequences of this bold +measure; but we have learned only by the publication of Lord +Shrewsbury's _Correspondence_, that it originated with the king, and +was carried through by him against the mutinous remonstrances of +Russell. See pp. 68, 104, 202, 210, 234. This was a most odious man; +as ill-tempered and violent as he was perfidious. But the rudeness +with which the king was treated by some of his servants is very +remarkable. Lord Sunderland wrote to him at least with great +bluntness. _Hardwicke Papers_, 444. + +[203] The peace of Ryswick was absolutely necessary, not only on +account of the defection of the Duke of Savoy, and the manifest +disadvantage with which the allies carried on the war, but because +public credit in England was almost annihilated, and it was hardly +possible to pay the army. The extreme distress for money is forcibly +displayed in some of the king's letters to Lord Shrewsbury. P. 114, +etc. These were in 1696, the very _nadir_ of English prosperity; from +which, by the favour of Providence and the buoyant energies of the +nation, we have, though not quite with an uniform motion, culminated +to our present height (1824). + +If the treaty could have been concluded on the basis originally laid +down, it would even have been honourable. But the French rose in their +terms during the negotiation; and through the selfishness of Austria +obtained Strasburgh, which they had at first offered to relinquish, +and were very near getting Luxemburg. _Shrewsbury Correspondence_, +316, etc. Still the terms were better than those offered in 1693, +which William has been censured for refusing. + +[204] Moyle now published his "Argument, showing that a standing army +is inconsistent with a free government, and absolutely destructive to +the constitution of the English monarchy" (_State Tracts_, ii. 564); +and Trenchard his "History of Standing Armies in England." _Id._ 653. +Other pamphlets of a similar description may be found in the same +volume. + +[205] Journals, 11th Dec. 1697; _Parl. Hist._ 1167. + +[206] Journals, 21st Dec. 1697; _Parl. Hist._ v. 1168. It was carried +by 225 to 86. + +[207] "The elections fell generally," says Burnet, "on men who were in +the interest of government; many of them had indeed some popular +notions, which they had drank in under a bad government, and thought +this ought to keep them under a good one; so that those who wished +well to the public did apprehend great difficulties in managing them." +Upon which Speaker Onslow has a very proper note: "They might happen +to think," he says, "a good one might become a bad one, or a bad one +might succeed to a good one. They were the best men of the age, and +were for maintaining the revolution government by its own principles, +and not by those of a government it had superseded." "The elections," +we read in a letter of Mr. Montague, Aug. 1698, "have made a humour +appear in the counties that is not very comfortable to us who are in +business. But yet after all, the present members are such as will +neither hurt England nor this government, but I believe they must be +handled very nicely." _Shrewsbury Correspondence_, 551. This +parliament, however, fell into a great mistake about the reduction of +the army; as Bolingbroke in his _Letters on History_ very candidly +admits, though connected with those who had voted for it. + +[208] Journals, 17th Dec. 1698; _Parl. Hist._ 1191. + +[209] Journals, 10th Jan., 18th, 20th, and 25th March; Lords' +Journals, 8th Feb.; _Parl. Hist._ 1167, 1191; Ralph, 808; Burnet, 219. +It is now beyond doubt that William had serious thoughts of quitting +the government, and retiring to Holland, sick of the faction and +ingratitude of this nation. _Shrewsbury Correspondence_, 571; +_Hardwicke Papers_, 362. This was in his character, and not like the +vulgar story which that retailer of all gossip, Dalrymple, calls a +well-authenticated tradition, that the king walked furiously round his +room, exclaiming, "If I had a son, by G-- the guards should not leave +me." It would be vain to ask how this son would have enabled him to +keep them against the bent of the parliament and people. + +[210] The prodigality of William in grants to his favourites was an +undeniable reproach to his reign. Charles II. had, however, with much +greater profuseness, though much less blamed for it, given away almost +all the Crown lands in a few years after the restoration; and the +Commons could not now be prevailed upon to shake those grants, which +was urged by the court, in order to defeat the resumption of those in +the present reign. The length of time undoubtedly made a considerable +difference. An enormous grant of the Crown's domanial rights in North +Wales to the Earl of Portland excited much clamour in 1697, and +produced a speech from Mr. Price, afterwards a baron of the exchequer, +which was much extolled for its boldness, not rather to say, virulence +and disaffection. This is printed in _Parl. Hist._ 978, and many other +books. The king, on an address from the House of Commons, revoked the +grant, which indeed was not justifiable. His answer on this occasion, +it may here be remarked, was by its mildness and courtesy a striking +contrast to the insolent rudeness with which the Stuarts, one and all, +had invariably treated the house. Yet to this vomit were many wretches +eager to return. + +[211] _Parl. Hist._ 1171, 1202, etc.; Ralph; Burnet; _Shrewsbury +Correspondence_. See also Davenant's "Essay on Grants and +Resumptions," and sundry pamphlets in _Somers Tracts_, vol. ii., and +_State Tracts_, temp. W. 3, vol. ii. + +[212] In Feb. 1692. + +[213] See the same authorities, especially the _Shrewsbury Letters_, +p. 602. + +[214] Commons' Journals, June 1, Aug. 12. + +[215] _Id._ Nov. 1. + +[216] _Parl. Hist._ 657; Dalrymple; Commons' and Lords' Journals. + +[217] _Parl. Hist._ 793. Delaval and Killigrew were Jacobites, whom +William generously but imprudently put into the command of the fleet. + +[218] Commons' Journals, Feb. 27, 1694-5. + +[219] _Parl. Hist._ 941; Burnet, 105. + +[220] Burnet, 163; Commons' Journals, Jan. 31, 1695-6. An abjuration +of King James's title in very strong terms was proposed as a +qualification for members of this council; but this was lost by 195 to +188. + +[221] See Speaker Onslow's Note on Burnet (Oxf. edit. iv. 468), and +Lord Hardwicke's hint of his father's opinion. _Id._ 475. But see also +Lord Somers's plea as to this. _State Trials_, xiii. 267. + +[222] _Parl. Hist._; _State Trials_, xiv. 233. The letters of William, +published in the _Hardwicke State Papers_, are both the most authentic +and the most satisfactory explanation of his policy during the three +momentous years that closed the seventeenth century. It is said, in a +note of Lord Hardwicke on Burnet (Oxford edit. iv. 417), (from Lord +Somers's papers), that when some of the ministers objected to parts of +the treaty, Lord Portland's constant answer was, that nothing could be +altered; upon which one of them said, if that was the case, he saw no +reason why they should be called together. And it appears by the +_Shrewsbury Papers_, p. 371, that the duke, though secretary of state, +and in a manner prime minister, was entirely kept by the king out of +the secret of the negotiations which ended in the peace of Ryswick: +whether, after all, there remained some lurking distrust of his +fidelity, or from whatever other cause this took place, it was very +anomalous and unconstitutional. And it must be owned, that by this +sort of proceeding, which could have no sufficient apology but a deep +sense of the unworthiness of mankind, William brought on himself much +of that dislike which appears so ungrateful and unaccountable. + +As to the impeachments, few have pretended to justify them; even Ralph +is half ashamed of the party he espouses with so little candour +towards their adversaries. The scandalous conduct of the tories in +screening the Earl of Jersey, while they impeached the whig lords, +some of whom had really borne no part in a measure he had promoted, +sufficiently displays the factiousness of their motives. See Lord +Haversham's speech on this. _Parl. Hist._ 1298. + +[223] Bishop Fleetwood, in a sermon, preached in 1703, says of +William, "whom all the world of friends and enemies know how to value, +except a _few English wretches_." Kennet, 840. Boyer, in his _History +of the Reign of Queen Anne_, p. 12, says that the king spent most of +his private fortune, computed at no less than two millions, in the +service of the English nation. I should be glad to have found this +vouched by better authority. + +[224] Lords' Journals. + +[225] _Parl. Hist._ 754. + +[226] 6 W. & M. c. 2. + +[227] _Rot. Parl._ ii. 239; 3 Inst. 1. + +[228] 3 Inst. 12; 1 Hale's _Pleas of the Crown_, 120; Foster, 195. +Coke lays it down positively (p. 14) that a conspiracy to levy war is +not high treason, as an overt act of compassing the king's death. "For +this were to confound the several classes or _membra dividentia_." +Hale objects that Coke himself cites the case of Lords Essex and +Southampton, which seems to contradict that opinion. But it may be +answered, in the first place, that a conspiracy to levy war was made +high treason during the life of Elizabeth; and secondly, that Coke's +words as to that case are, that they "intended to go to the court +where the queen was, and to have taken her into their power, and to +have removed divers of her council, and _for that end did assemble a +multitude of people_: this being raised to the end aforesaid, was a +sufficient overt act of compassing the death of the queen." The +earliest case is that of Storie, who was convicted of compassing the +queen's death on evidence of exciting a foreign power to invade the +kingdom. But he was very obnoxious; and the precedent is not good. +Hale, 122. + +It is also held that an actual levying war may be laid as an overt act +of compassing the king's death, which indeed follows _a fortiori_ from +the former proposition; provided it be not a constructive rebellion, +but one really directed against the royal authority. Hale, 123. + +[229] Hale, 121. + +[230] Foster's _Discourse on High Treason_, 196; _State Trials_, xii. +646, 790, 818; xiii. 62 (Sir John Friend's case) _et alibi_. This +important question having arisen on Lord Russell's trial, gave rise to +a controversy between two eminent lawyers, Sir Bartholomew Shower and +Sir Robert Atkins; the former maintaining, the latter denying, that a +conspiracy to depose the king and to seize his guards was an overt act +of compassing his death. _State Trials_, ix. 719, 818. + +See also Phillipps's _State Trials_, ii. 39, 78; a work to which I +might have referred in other places, and which shows the well known +judgment and impartiality of the author. + +[231] In the whole series of authorities, however, on this subject, it +will be found that the probable danger to the king's safety from +rebellion was the ground-work upon which this constructive treason +rested; nor did either Hale or Foster, Pemberton or Holt, ever dream +that any other death was intended by the statute than that of nature. +It was reserved for a modern Crown lawyer to resolve this language +into a metaphysical personification, and to argue that the king's +person being interwoven with the state, and its sole representative, +any conspiracy against the constitution must of its own nature be a +conspiracy against his life. _State Trials_, xxiv. 1183. + +[232] 13 Eliz. c. 1; 13 Car. 2, c. 1; 36 G. 3, c. 7. + +[233] Hale, 123; Foster, 213. + +[234] Lord George Gordon's case, _State Trials_, xxi. 649. + +[235] Hardy's case. _Id._ xxiv. 208. The language of Chief Justice +Eyre is sufficiently remarkable. + +[236] Foster, 198. He seems to concur in Hale's opinion, that words +which being spoken will not amount to an overt act to make good an +indictment for compassing the king's death, yet if reduced into +writing, and published, will make such an overt act, "if the matters +contained in them import such a compassing." Hale's _Pleas of Crown_, +118. But this is indefinitely expressed, the words marked as a +quotation looking like a truism, and contrary to the first part of the +sentence; and the case of Williams, under James I., which Hales cites +in corroboration of this, will hardly be approved by any +constitutional lawyer. + +[237] Hale, 134. It is observable that Hale himself, as chief baron, +differed from the other judges in this case. + +[238] This is the well known case of Damaree and Purchase. _State +Trials_, xv. 520; Foster, 213. A rabble had attended Sacheverell from +Westminster to his lodgings in the Temple. Some among them proposed to +pull down the meeting-houses; a cry was raised, and several of these +were destroyed. It appeared to be their intention to pull down all +within their reach. Upon this overt act of levying war the prisoners +were convicted; some of the judges differing as to one of them, but +merely on the application of the evidence to his case. Notwithstanding +this solemn decision, and the approbation with which Sir Michael +Foster has stamped it, some difficulty would arise in distinguishing +this case, as reported, from many indictments under the riot act for +mere felony; and especially from those of the Birmingham rioters in +1791, where the similarity of motives, though the mischief in the +latter instance was far more extensive, would naturally have suggested +the same species of prosecution as was adopted against Damaree and +Purchase. It may be remarked that neither of these men was executed; +which, notwithstanding the sarcastic observation of Foster, might +possibly be owing to an opinion, which every one but a lawyer must +have entertained, that their offence did not amount to treason. + +[239] 7 W. 3, c. 3, Sec. 4; Foster, 257. + +[240] Foster, 234. + +[241] "Would you have trials secured?" says the author of the +"Jacobite Principles Vindicated" (_Somers Tracts_, 10, 526). "It is +the interest of all parties care should be taken about them, or all +parties will suffer in their turns. Plunket, and Sidney, and Ashton +were doubtless all murdered though they were never so guilty of the +crimes wherewith they were charged; the one tried twice, the other +found guilty upon one evidence, and the last upon nothing but +presumptive proof." Even the prostitute lawyer, Sir Bartholomew +Shower, had the assurance to complain of uncertainty in the law of +treason. _Id._ 572. And Roger North, in his _Examen_, p. 411, labours +hard to show that the evidence in Ashton's case was slighter than in +Sidney's. + +[242] _State Trials_, xii. 646.--See 668 and 799. + +[243] _State Trials_, xii. 1245; Ralph, 420; _Somers Tracts_, x. 472. +The Jacobites took a very frivolous objection to the conviction of +Anderton, that printing could not be treason within the statute of +Edward III., because it was not invented for a century afterwards. +According to this rule, it could not be treason to shoot the king with +a pistol or poison him with an American drug. + +[244] _Parl. Hist._ v. 698. + +[245] _Id._ v. 675. + +[246] _Parl. Hist._ 712, 737; Commons' Journals, Feb. 8, 1695. + +[247] _Id._ 965; Journal, 17th Feb. 1696; Stat. 7, W. 3 c. 3. Though +the court opposed this bill, it was certainly favoured by the zealous +whigs as much as by the opposite party. + +[248] When several persons of distinction were arrested on account of +a jacobite conspiracy in 1690, there was but one witness against some +of them. The judges were consulted whether they could be indicted for +a high misdemeanour on this single testimony, as Hampden had been in +1685; the attorney-general Treby maintaining this to be lawful. Four +of the judges were positively against this, two more doubtfully the +same way, one altogether doubtful, and three in favour of it. The +scheme was very properly abandoned; and at present, I suppose, nothing +can be more established than the negative. Dalrymple, Append. 186. + +[249] _State Trials_, xii. 1051. + +[250] The dexterity with which Lord Shaftesbury (the author of the +_Characteristics_), at that time in the House of Commons, turned a +momentary confusion which came upon him while speaking on this bill, +into an argument for extending the aid of counsel to those who might +so much more naturally be embarrassed on a trial for their lives, is +well known. All well-informed writers ascribe this to Shaftesbury. But +Johnson, in the _Lives of the Poets_, has, through inadvertence, as I +believe, given Lord Halifax (Montagu) the credit of it; and some have +since followed him. As a complete refutation of this mistake, it is +sufficient to say that Mr. Montagu _opposed_ the bill. His name +appears as a teller on two divisions, 31st Dec. 1691, and 18th Nov. +1692. + +[251] It was said by Scroggs and Jefferies, that if one witness prove +that A. bought a knife, and another that he intended to kill the king +with it, these are two witnesses within the statute of Edward VI. But +this has been justly reprobated. + +[252] Upon some of the topics touched in the foregoing pages, besides +Hale and Foster, see Luders' _Considerations on the Law of Treason in +Levying War_, and many remarks in Phillipps's _State Trials_; besides +much that is scattered through the notes of Mr. Howell's great +collection. Mr. Phillipps' work, however, was not published till after +my own was written. + +[253] Commons' Journals, 9 Jan. and 11 Feb. 1694-5. A bill to the same +effect sent down from the Lords was thrown out, 17 April 1695. Another +bill was rejected on the second reading in 1697. _Id._ 3 April. + +[254] _Somers Tracts_, passim. John Dunton the bookseller, in the +_History of his Life and Errors_, hints that unlicensed books could be +published by a douceur to Robert Stephens, the messenger of the press, +whose business it was to inform against them. + +[255] _State Trials_, xiv. 1103, 1128. Mr. Justice Powell told the +Rev. Mr. Stephens, in passing sentence on him for a libel on Harley +and Marlborough, that to traduce the queen's ministers was a +reflection on the queen herself. It is said, however, that this and +other prosecutions were generally blamed; for the public feeling was +strong in favour of the liberty of the press. Boyer's _Reign of Queen +Anne_, p. 286. + +[256] Pemberton, as I have elsewhere observed, permitted evidence to +be given as to the truth of an alleged libel in publishing that Sir +Edmondbury Godfrey had murdered himself. And what may be reckoned more +important, in a trial of the famous Fuller on a similar charge, Holt +repeatedly (not less than five times) offered to let him prove the +truth if he could. _State Trials_, xiv. 534. But, on the trial of +Franklin, in 1731, for publishing a libel in the _Craftsman_, Lord +Raymond positively refused to admit of any evidence to prove the +matters to be true; and said he was only abiding by what had been +formerly done in other cases of the like nature. _Id._ xvii. 659. + +[257] See the pamphlets of that age, _passim_. One of these, entitled +"The Zealous and Impartial Protestant," 1681, the author of which, +though well known, I cannot recollect, after much invective, says, +"Liberty of conscience and toleration are things only to be talked of +and pretended to by those that are under; but none like or think it +reasonable that are in authority. 'Tis an instrument of mischief and +dissettlement, to be courted by those who would have change, but no +way desirable by such as would be quiet, and have the government +undisturbed. For it is not consistent with public peace and safety +without a standing army; conventicles being eternal nurseries of +sedition and rebellion."--P. 30. "To strive for toleration," he says +in another place, "is to contend against all government. It will come +to this; whether there should be a government in the church or not? +for if there be a government, there must be laws; if there be laws, +there must be penalties annexed to the violation of those laws; +otherwise the government is precarious and at every man's mercy; that +is, it is none at all.... The constitution should be made firm, +whether with any alterations or without them, and laws put in punctual +vigorous execution. Till that is done all will signify nothing. The +church hath lost all through remissness and non-execution of laws; and +by the contrary course things must be reduced, or they never will. To +what purpose are parliaments so concerned to prepare good laws, if the +officers who are intrusted with the execution neglect that duty, and +let them lie dead? This brings laws and government into contempt, and +it were much better the laws were never made; by these the dissenters +are provoked, and being not restrained by the exacting of the +penalties, they are fiercer and more bent upon their own ways than +they would be otherwise. But it may be said the execution of laws of +conformity raiseth the cry of persecution; and will not that be +scandalous? Not so scandalous as anarchy, schism, and eternal +divisions and confusions both in church and state. Better that the +unruly should clamour than that the regular should groan, and all +should be undone."--P. 33. Another tract, "Short Defence of the Church +and Clergy of England, 1679," declares for union (in his own way), but +against a comprehension, and still more a toleration. "It is +observable that whereas the best emperors have made the severest laws +against all manner of sectaries, Julian the apostate, the most subtle +and bitter enemy that Christianity ever had, was the man that set up +this way of toleration."--P. 87. Such was the temper of this odious +faction. And at the time they were instigating the government to fresh +severities, by which, I sincerely believe, they meant the pillory or +the gallows (for nothing else was wanting), scarce a gaol in England +was without nonconformist ministers. One can hardly avoid rejoicing +that some of these men, after the revolution, experienced, not indeed +the persecution, but the poverty they had been so eager to inflict on +others. + +The following passage from a very judicious tract on the other side, +"Discourse of the Religion of England, 1667," may deserve to be +extracted. "Whether cogent reason speaks for this latitude, be it now +considered. How momentous in the balance of this nation those +protestants are which are dissatisfied in the present ecclesiastical +polity. They are everywhere spread through city and country; they make +no small part of all ranks and sorts of men; by relations and commerce +they are so woven into the nation's interest, that it is not easy to +sever them without unravelling the whole. They are not excluded from +the nobility, among the gentry they are not a few; but none are of +more importance than they in the trading part of the people and those +that live by industry, upon whose hands the business of the nation +lies much. It hath been noted that some who bear them no good will +have said that the very air of corporations is infested with their +contagion. And in whatsoever degree they are high or low, ordinarily +for good understanding, steadiness and sobriety, they are not inferior +to others of the same rank and quality; neither do they want the +rational courage of Englishmen."--P. 23. + +[258] _Parl. Hist._ iv. 1311; Ralph, 559. + +[259] Baxter; Neal; Palmer's _Nonconformist's Memorial_. + +[260] _Parl. Hist._ v. 263. Some of the tories wished to pass it only +for seven years. The high-church pamphlets of the age grumble at the +toleration. + +[261] Burnet; _Parl. Hist._ 184. + +[262] _Parl. Hist._ 196. + +[263] _Id._ 212, 216. + +[264] Burnet; Ralph. But a better account of what took place in the +convocation and among the commissioners will be found in Kennet's +_Compl. Hist._ 557, 588, etc. + +[265] Leslie's _Case of the Regale and Pontificate_ is a long dull +attempt to set up the sacerdotal order above all civil power, at least +as to the exercise of its functions, and especially to get rid of the +appointment of bishops by the Crown, or, by parity of reasoning, of +priests by laymen. He is indignant even at laymen choosing their +chaplains, and thinks they ought to take them from the bishop; +objecting also to the phrase, my chaplain, as if they were servants: +"otherwise the expression is proper enough to say my chaplain, as I +say my parish priest, my bishop, my king, or my God; which argues my +being under their care and direction, and that I belong to them, not +they to me."--P. 182. It is full of enormous misrepresentation as to +the English law. + +[266] See Burnet (Oxf. iv. 409) and Lord Dartmouth's note. + +[267] No opposition seems to have been made in the House of Commons; +but we have a protest from four peers against it. Burnet, though he +offers some shameful arguments in favour of the bill, such as might +justify any tyranny, admits that it contained some unreasonable +severities, and that many were really adverse to it. A bill proposed +in 1705, to render the late act against papists effective, was lost by +119 to 43 (_Parl. Hist._ vi. 514); which shows that men were ashamed +of what they had done. A proclamation, however, was issued in 1711, +immediately after Guiscard's attempt to kill Mr. Harley, for enforcing +the penal laws against Roman catholics, which was very scandalous, as +tending to impute that crime to them. Boyer's _Reign of Anne_, p. 429. +And in the reign of Geo. I. (1722) L100,000 was levied by a particular +act on the estates of papists and non-jurors. This was only carried by +188 to 172; Sir Joseph Jekyll and Mr. Onslow, afterwards speaker, +opposing it, as well as Lord Cowper in the other house. 9 G. I. c. 18; +_Parl. Hist._ viii. 51, 353. It was quite impossible that those who +sincerely maintained the principles of toleration should long continue +to make any exception; though the exception in this instance was +wholly on political grounds, and not out of bigotry, it did not the +less contravene all that Taylor and Locke had taught men to cherish. + +[268] 11 & 12 W. 3, c. 4. It is hardly necessary to add, that this act +was repealed in 1779. + +[269] Butler's _Memoirs of Catholics_, ii. 64. + +[270] While the bill regulating the succession was in the House of +Commons, a proviso was offered by Mr. Godolphin, that nothing in this +act is intended to be drawn into example or consequence hereafter, to +prejudice the right of any protestant prince or princess in their +hereditary succession to the imperial crown of those realms. This was +much opposed by the whigs; both because it tended to let in the son of +James II., if he should become a protestant, and for a more secret +reason, that they did not like to recognise the continuance of any +hereditary right. It was rejected by 179 to 125. _Parl. Hist._ v. 249. +The Lords' amendment in favour of the Princess Sophia was lost without +a division. _Id._ 339. + +[271] The Duchess of Savoy put in a very foolish protest against +anything that should be done to prejudice _her_ right. Ralph, 924. + +[272] 12 & 13 w. 3, c. 2. + +[273] It was frequently contended in the reign of George II. that +subsidiary treaties for the defence of Hanover, or rather such as were +covertly designed for that and no other purpose, as those with Russia +and Hesse Cassel in 1755, were at least contrary to the spirit of the +act of settlement. On the other hand it was justly answered that, +although in case Hanover should be attacked on the ground of a German +quarrel, unconnected with English politics, we were not bound to +defend her; yet, if a power at war with England should think fit to +consider that electorate as part of the king's dominions (which +perhaps according to the law of nations might be done), our honour +must require that it should be defended against such an attack. This +is true; and yet it shows very forcibly that the separation of the two +ought to have been insisted upon; since the present connection engages +Great Britain in a very disadvantageous mode of carrying on its wars, +without any compensation of national wealth or honour; except indeed +that of employing occasionally in its service a very brave and +efficient body of troops. + +[274] 1 G. 1, c. 51. + +[275] _Life of Clarendon_, 319. + +[276] "The method is this," says a member in debate; "things are +concerted in the cabinet, and then brought to the council; such a +thing is resolved in the cabinet, and brought and put on them for +their assent, without showing any of the reasons. That has not been +the method of England. If this method be, you will never know who +gives advice." _Parl. Hist._ v. 731. + +In Sir Humphrey Mackworth's [or perhaps Mr. Harley's] "Vindication of +the Rights of the Commons of England, 1701," _Somers Tracts_, xi. 276, +the constitutional doctrine is thus laid down, according to the spirit +of the recent act of settlement. "As to the setting of the great seal +of England to foreign alliances, the lord chancellor, or lord keeper +for the time being, has a plain rule to follow; that is, humbly to +inform the king that he cannot legally set the great seal of England +to a matter of that consequence unless the same be first debated and +resolved in council; which method being observed, the chancellor is +safe, and the council answerable."--P. 293. + +[277] This very delicate question as to the responsibility of the +cabinet, or what is commonly called the ministry _in solidum_, if I +may use the expression, was canvassed in a remarkable discussion +within our memory, on the introduction of the late chief justice of +the King's Bench into that select body; Mr. Fox strenuously denying +the proposition, and Lord Castlereagh, with others now living, +maintaining it. _Parl. Debates_, A.D. 1806. I cannot possibly +comprehend how an article of impeachment, for sitting as a cabinet +minister could be drawn; nor do I conceive that a privy counsellor has +a right to resign his place at the board; so that it would be highly +unjust and illegal to presume a participation in culpable measures +from the mere circumstance of belonging to it. Even if notoriety be a +ground, as has been sometimes contended, for impeachment, it cannot be +sufficient for conviction. + +[278] Anne, c. 8; 6 Anne, c. 7. + +[279] This is the modern usage, but of its origin I cannot speak. On +one remarkable occasion, while Anne was at the point of death, the +Dukes of Somerset and Argyle went down to the council-chamber without +summons to take their seats; but it seems to have been intended as an +unexpected manoeuvre of policy. + +[280] It is provided by 1 G. 1, st. 2, c. 4, that no bill of +naturalisation shall be received without a clause disqualifying the +party from sitting in parliament, etc., "for the better preserving the +said clause in the said act entire and inviolate." This provision, +which is rather supererogatory, was of course intended to show the +determination of parliament not to be governed, ostensibly at least, +by foreigners under their foreign master. + +[281] _Parl. Hist._ 807, 840. Burnet says (p. 42) that Sir John +Trevor, a tory, first put the king on this method of corruption. +Trevor himself was so venal that he received a present of 1000 guineas +from the city of London, being then speaker of the Commons, for his +service in carrying a bill through the house; and, upon its discovery, +was obliged to put the vote, that he had been guilty of a high crime +and misdemeanour. This resolution being carried, he absented himself +from the house, and was expelled. _Parl. Hist._ 900; Commons' +Journals, 12th March 1694-5. The Duke of Leeds, that veteran of secret +iniquity, was discovered about the same time to have taken bribes from +the East India Company, and was impeached in consequence; I say +discovered, for there seems little or no doubt of his guilt. The +impeachment, however, was not prosecuted for want of evidence. _Parl. +Hist._ 881, 911, 933. Guy, secretary of the treasury, another of +Charles II.'s court, was expelled the house on a similar imputation. +_Id._ 886. Lord Falkland was sent to the Tower for begging L2000 of +the king. _Id._ 841. A system of infamous peculation among the +officers of government came to light through the inquisitive spirit of +parliament in this reign; not that the nation was worse and more +corrupt than under the Stuarts, but that a profligacy, which had been +engendered and had flourished under their administration, was now +dragged to light and punishment. Long sessions of parliament and a +vigilant party-spirit exposed the evil, and have finally in a great +measure removed it; though Burnet's remark is still not wholly +obsolete. "The regard," says that honest bishop, "that is shown to the +members of parliament among us, makes that few abuses can be inquired +into or discovered." + +[282] _Parl. Hist._ 748, 829. The house resolved, "that whoever +advised the king not to give the royal assent to the act touching free +and impartial proceedings in parliament, which was to redress a +grievance, and take off a scandal upon the proceedings of the Commons +in parliament, is an enemy to their majesties and the kingdom." They +laid a representation before the king, showing how few instances have +been in former reigns of denying the royal assent to bills for redress +of grievances, and the great grief of the Commons "for his not having +given the royal assent to several public bills, and particularly the +bill touching free and impartial proceedings in parliament, which +tended so much to the clearing the reputation of this house, after +their having so freely voted to supply the public occasions." The king +gave a courteous but evasive answer, as indeed it was natural to +expect; but so great a flame was raised in the Commons, that it was +moved to address him for a further answer, which, however, there was +still a sense of decorum sufficient to prevent. + +Though the particular provisions of this bill do not appear, I think +it probable that it went too far in excluding military as well as +civil officers. + +[283] 4 & 5 W. & M. c. 21. + +[284] 11 & 12 W. 3, c. 2, Sec. 50. + +[285] The House of Commons introduced into the act of security, as it +was called, a long clause, carried on a division by 167 to 160, Jan. +24, 1706, enumerating various persons who should be eligible to +parliament; the principal officers of state, the commissioners of +treasury and admiralty, and a limited number of other placemen. The +Lords thought fit to repeal the whole prohibitory enactment. It was +resolved in the Commons, by a majority of 205 to 183, that they would +not agree to this amendment. A conference accordingly took place, when +the managers of the Commons objected (Feb. 7) that a total repeal of +that provision would admit such an unlimited number of officers to sit +in their house, as might destroy the free and impartial proceedings in +parliament, and endanger the liberties of the Commons of England. +Those on the Lords' side gave their reasons to the contrary at great +length, Feb. 11. The Commons determined (Feb. 18) to insert the +provision vacating the seat of a member accepting office; and resolved +not to insist on their disagreements as to the main clause. Three +protests were entered in the House of Lords against inserting the word +"repealed" in reference to the prohibitory clause, instead of +"regulated and altered," all by tory peers. It is observable that, as +the provision was not to take effect till the house of Hanover should +succeed to the throne, the sticklers for it might be full as much +influenced by their ill-will to that family as by their zeal for +liberty. + +[286] 4 Anne, c. 8; 6 Anne, c. 7. + +[287] Burnet, 86. It was represented to the king, he says, by some of +the judges themselves, that it was not fit they should be out of all +dependence on the court. + +[288] It was originally resolved that they should be removable on the +address of either house, which was changed afterwards to both houses. +Comm. Journ. 12th March, and 10th May. + +[289] It was proposed in the Lords, as a clause in the bill of rights, +that pardons upon an impeachment should be void, but lost by 50 to 17; +on which twelve peers, all whigs, entered a protest. _Parl. Hist._ +482. + +[290] 13 W. 3, c. 3. The Lords introduced an amendment into this bill, +to attaint also Mary of Este, the late queen of James II. But the +Commons disagreed on the ground that it might be of dangerous +consequence to attaint any one by an amendment, in which case such due +consideration cannot be had, as the nature of an attainder requires. +The Lords, after a conference, gave way; but brought in a separate +bill to attaint Mary of Este, which passed with a protest of the tory +peers. Lords' Journals, Feb. 6, 12, 20, 1701-2. + +[291] 13 W. 3, c. 6. + +[292] Sixteen lords, including two bishops, Compton and Sprat, +protested against the bill containing the abjuration oath. The first +reason of their votes was afterwards expunged from the Journals by +order of the house. Lords' Journals, 24th Feb., 3rd March 1701-2. + +[293] Whiston mentions, that Mr. Baker, of St. John's, Cambridge, a +worthy and learned man, as well as others of the college, had thoughts +of taking the oath of allegiance on the death of King James; but the +oath of abjuration coming out the next year, had such expressions as +he still scrupled. Whiston's _Memoirs_; _Biog. Brit._ (Kippis's +edition), art. Baker. + + + + +CHAPTER XVI + +ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND +GEORGE II. + + +The act of settlement was the seal of our constitutional laws, the +complement of the revolution itself and the bill of rights, the last +great statute which restrains the power of the Crown, and manifests, +in any conspicuous degree, a jealousy of parliament in behalf of its +own and the subject's privileges. The battle had been fought and +gained; the statute-book, as it becomes more voluminous, is less +interesting in the history of our constitution; the voice of petition, +complaint, or remonstrance is seldom to be traced in the Journals; the +Crown in return desists altogether, not merely from the threatening or +objurgatory tone of the Stuarts, but from that dissatisfaction +sometimes apparent in the language of William; and the vessel seems +riding in smooth water, moved by other impulses, and liable perhaps to +other dangers, than those of the ocean-wave and the tempest. The +reigns, accordingly, of Anne, George I., and George II., afford rather +materials for dissertation, than consecutive facts for such a work as +the present; and may be sketched in a single chapter, though by no +means the least important, which the reader's study and reflection +must enable him to fill up. Changes of an essential nature were in +operation during the sixty years of these three reigns, as well as in +that beyond the limits of this undertaking, which in length measures +them all; some of them greatly enhancing the authority of the Crown, +or rather of the executive government, while others had so opposite a +tendency, that philosophical speculators have not been uniform in +determining on which side was the sway of the balance. + +_Distinctive principles of whigs and tories._--No clear understanding +can be acquired of the political history of England without +distinguishing, with some accuracy of definition, the two great +parties of whig and tory. But this is not easy; because those +denominations being sometimes applied to factions in the state, intent +on their own aggrandisement, sometimes to the principles they +entertained or professed, have become equivocal, and do by no means, +at all periods and on all occasions, present the same sense; an +ambiguity which has been increased by the lax and incorrect use of +familiar language. We may consider the words, in the first instance, +as expressive of a political theory or principle, applicable to the +English government. They were originally employed at the time of the +bill of exclusion, though the distinction of the parties they denote +is evidently at least as old as the long parliament. Both of these +parties, it is material to observe, agreed in the maintenance of the +constitution; that is, in the administration of government by an +hereditary sovereign, and in the concurrence of that sovereign with +the two houses of parliament in legislation, as well as in those other +institutions which have been reckoned most ancient and fundamental. A +favourer of unlimited monarchy was not a tory, neither was a +republican a whig. Lord Clarendon was a tory, Hobbes was not; Bishop +Hoadley was a whig, Milton was not. But they differed mainly in this; +that to a tory the constitution, inasmuch as it was the constitution, +was an ultimate point, beyond which he never looked, and from which he +thought it altogether impossible to swerve; whereas the whig deemed +all forms of government subordinate to the public good, and therefore +liable to change when they should cease to promote that object. Within +those bounds which he, as well as his antagonist, meant not to +transgress, and rejecting all unnecessary innovation, the whig had a +natural tendency to political improvement, the tory an aversion to it. +The one loved to descant on liberty and the rights of mankind, the +other on the mischiefs of sedition and the rights of kings. Though +both, as I have said, admitted a common principle, the maintenance of +the constitution, yet this made the privileges of the subject, that +the Crown's prerogative, his peculiar care. Hence it seemed likely +that, through passion and circumstance, the tory might aid in +establishing despotism, or the whig in subverting monarchy. The former +was generally hostile to the liberty of the press, and to freedom of +enquiry, especially in religion; the latter their friend. The +principle of the one, in short, was melioration; of the other, +conservation. + +But the distinctive characters of whig and tory were less plainly +seen, after the revolution and act of settlement, in relation to the +Crown, than to some other parts of our polity. The tory was ardently, +and in the first place, the supporter of the church in as much +pre-eminence and power as he could give it. For the church's sake, +when both seemed as it were on one plank, he sacrificed his loyalty; +for her he was always ready to persecute the catholic, and if the +times permitted not to persecute, yet to restrain and discountenance, +the nonconformist. He came unwillingly into the toleration, which the +whig held up as one of the great trophies of the revolution. The whig +spurned at the haughty language of the church, and treated the +dissenters with moderation, or perhaps with favour. This distinction +subsisted long after the two parties had shifted their ground as to +civil liberty and royal power. Again; a predilection for the +territorial aristocracy, and for a government chiefly conducted by +their influence, a jealousy of new men, of the mercantile interest, of +the commonalty, never failed to mark the genuine tory. It has been +common to speak of the whigs as an aristocratical faction. Doubtless +the majority of the peerage from the revolution downwards to the death +of George II. were of that denomination. But this is merely an +instance wherein the party and the principle are to be distinguished. +The natural bias of the aristocracy is towards the Crown; but, except +in most part of the reign of Anne, the Crown might be reckoned with +the whig party. No one who reflects on the motives which are likely to +influence the judgment of classes in society, would hesitate to +predict that an English House of Lords would contain a larger +proportion of men inclined to the tory principle than of the opposite +school; and we do not find that experience contradicts this +anticipation. + +It will be obvious that I have given to each of these political +principles a moral character; and have considered them as they would +subsist in upright and conscientious men, not as we may find them "in +the dregs of Romulus," suffocated by selfishness or distorted by +faction. The whigs appear to have taken a far more comprehensive view +of the nature and ends of civil society; their principle is more +virtuous, more flexible to the variations of time and circumstance, +more congenial to large and masculine intellects. But it may probably +be no small advantage that the two parties, or rather the sentiments +which have been presumed to actuate them, should have been mingled, as +we find them, in the complex mass of the English nation, whether the +proportions may or not have been always such as we might desire. They +bear some analogy to the two forces which retain the planetary bodies +in their orbits; the annihilation of one would disperse them into +chaos, that of the other would drag them to a centre. And, though I +cannot reckon these old appellations by any means characteristic of +our political factions in the nineteenth century, the names whig and +tory are often well applied to individuals. Nor can it be otherwise; +since they are founded not only on our laws and history, with which +most have some acquaintance, but in the diversities of condition and +of moral temperament generally subsisting among mankind. + +It is, however, one thing to prefer the whig principle, another to +justify, as an advocate, the party which bore that name. So far as +they were guided by that principle, I hold them far more friendly to +the great interests of the commonwealth than their adversaries. But, +in truth, the peculiar circumstances of these four reigns after the +revolution, the spirit of faction, prejudice, and animosity, above +all, the desire of obtaining or retaining power, which, if it be ever +sought as a means, is soon converted into an end, threw both parties +very often into a false position, and gave to each the language and +sentiments of the other; so that the two principles are rather to be +traced in writings, and those not wholly of a temporary nature, than +in the debates of parliament. In the reigns of William and Anne, the +whigs, speaking of them generally as a great party, had preserved +their original character unimpaired far more than their opponents. All +that had passed in the former reign served to humble the tories, and +to enfeeble their principle. The revolution itself, and the votes upon +which it was founded, the bill of recognition in 1690, the repeal of +the non-resisting test, the act of settlement, the oath of abjuration, +were solemn adjudications, as it were, against their creed. They took +away the old argument, that the letter of the law was on their side. +If this indeed were all usurpation, the answer was ready; but those +who did not care to make it, or by their submission put it out of +their power, were compelled to sacrifice not a little of that which +had entered into the definition of a tory. Yet even this had not a +greater effect than that systematic jealousy and dislike of the +administration, which made them encroach, according to ancient +notions, and certainly their own, on the prerogative of William. They +learned in this no unpleasing lesson to popular assemblies, to magnify +their own privileges and the rights of the people. This tone was often +assumed by the friends of the exiled family, and in them it was +without any dereliction of their object. It was natural that a +jacobite should use popular topics in order to thwart and subvert an +usurping government. His faith was to the crown, but to the crown on a +right head. In a tory who voluntarily submitted to the reigning +prince, such an opposition to the prerogative was repugnant to the +maxims of his creed, and placed him, as I have said, in a false +position. This is of course applicable to the reigns of George I. and +II., and in a greater degree in proportion as the tory and jacobite +were more separated than they had been perhaps under William. + +The tories gave a striking proof how far they might be brought to +abandon their theories, in supporting an address to the queen that she +would invite the Princess Sophia to take up her residence in England; +a measure so unnatural as well as imprudent that some have ascribed it +to a subtlety of politics which I do not comprehend. But we need not, +perhaps, look farther than to the blind rage of a party just +discarded, who, out of pique towards their sovereign, made her more +irreconcilably their enemy, and while they hoped to brand their +opponents with inconsistency, forgot that the imputation would redound +with tenfold force on themselves. The whigs justly resisted a proposal +so little called for at that time; but it led to an act for the +security of the succession, designating a regency in the event of the +queen's decease, and providing that the actual parliament, or the +last, if none were in being, should meet immediately, and continue for +six months, unless dissolved by the successor.[294] + +In the conduct of this party, generally speaking, we do not, I think, +find any abandonment of the cause of liberty. The whigs appear to have +been zealous for bills excluding placemen from the house, or limiting +their numbers in it; and the abolition of the Scots privy council, an +odious and despotic tribunal, was owing in a great measure to the +authority of Lord Somers.[295] In these measures however the tories +generally co-operated, and it is certainly difficult in the history of +any nation, to separate the influence of sincere patriotism from that +of animosity and thirst of power. But one memorable event in the reign +of Anne gave an opportunity for bringing the two theories of +government into collision, to the signal advantage of that which the +Whigs professed; I mean, the impeachment of Dr. Sacheverell. Though +with a view to the interests of their ministry, this prosecution was +very unadvised, and has been deservedly censured, it was of high +importance in a constitutional light, and is not only the most +authentic exposition, but the most authoritative ratification, of the +principles upon which the revolution is to be defended.[296] + +The charge against Sacheverell was, not for impugning what was done at +the revolution, which he affected to vindicate, but for maintaining +that it was not a case of resistance to the supreme power, and +consequently no exception to his tenet of an unlimited passive +obedience. The managers of the impeachment had therefore not only to +prove that there was resistance in the revolution, which could not of +course be sincerely disputed, but to assert the lawfulness, in great +emergencies, or what is called in politics necessity, of taking arms +against the law--a delicate matter to treat of at any time, and not +least so by ministers of state and law officers of the Crown, in the +very presence, as they knew, of their sovereign.[297] We cannot praise +too highly their speeches upon this charge; some shades, rather of +discretion than discordance, may be perceptible; and we may +distinguish the warmth of Lechmere, or the openness of Stanhope, from +the caution of Walpole, who betrays more anxiety than his colleagues +to give no offence in the highest quarter; but in every one the same +fundamental principles of the whig creed, except on which indeed the +impeachment could not rest, are unambiguously proclaimed. "Since we +must give up our right to the laws and liberties of this kingdom," +says Sir Joseph Jekyll, "or, which is all one, be precarious in the +enjoyment of them, and hold them only during pleasure, if this +doctrine of unlimited non-resistance prevails, the Commons have been +content to undertake this prosecution."[298]--"The doctrine of +unlimited, unconditional, passive obedience," says Mr. Walpole, "was +first invented to support arbitrary and despotic power, and was never +promoted or countenanced by any government that had not designs some +time or other of making use of it."[299] And thus General Stanhope +still more vigorously: "As to the doctrine itself of absolute +non-resistance, it should seem needless to prove by arguments that it +is inconsistent with the law of reason, with the law of nature, and +with the practice of all ages and countries. Nor is it very material +what the opinions of some particular divines, or even the doctrine +generally preached in some particular reigns, may have been concerning +it. It is sufficient for us to know what the practice of the church of +England has been, when it found itself oppressed. And indeed one may +appeal to the practice of all churches, of all states, and of all +nations in the world, how they behaved themselves when they found +their civil and religious constitutions invaded and oppressed by +tyranny. I believe we may further venture to say, that there is not at +this day subsisting any nation or government in the world, whose first +original did not receive its foundation either from resistance or +compact; and as to our purpose, it is equal if the latter be admitted. +For wherever compact is admitted, there must be admitted likewise a +right to defend the rights accruing by such compact. To argue the +municipal laws of a country in this case is idle. Those laws were only +made for the common course of things, and can never be understood to +have been designed to defeat the end of all laws whatsoever; which +would be the consequence of a nation's tamely submitting to a +violation of all their divine and human rights."[300] Mr. Lechmere +argues to the same purpose in yet stronger terms.[301] + +But, if these managers for the commons were explicit in their +assertion of the whig principle, the counsel for Sacheverell by no +means unfurled the opposite banner with equal courage. In this was +chiefly manifested the success of the former. His advocates had +recourse to the petty chicane of arguing that he had laid down a +general rule of obedience without mentioning its exceptions, that the +revolution was a case of necessity, and that they fully approved what +was done therein. They set up a distinction, which, though at that +time perhaps novel, has sometimes since been adopted by tory writers; +that resistance to the supreme power was indeed utterly illegal on any +pretence whatever, but that the supreme power in this kingdom was the +legislature, not the king; and that the revolution took effect by the +concurrence of the Lords and Commons.[302] This is of itself a descent +from the high ground of toryism, and would not have been held by the +sincere bigots of that creed. Though specious, however, the argument +is a sophism, and does not meet the case of the revolution. For, +though the supreme power may be said to reside in the legislature, yet +the prerogative within its due limits is just as much part of the +constitution, and the question of resistance to lawful authority +remains as before. Even if this resistance had been made by the two +houses of parliament, it was but the case of the civil war, which had +been explicitly condemned by more than one statute of Charles II. But, +as Mr. Lechmere said in reply, it was undeniable that the Lords and +Commons did not join in that resistance at the revolution as part of +the legislative and supreme power, but as part of the collective body +of the nation.[303] And Sir John Holland had before observed, "that +there was a resistance at the revolution was most plain, if taking up +arms in Yorkshire, Nottinghamshire, Cheshire, and almost all the +counties of England; if the desertion of a prince's own troops to an +invading prince, and turning their arms against their sovereign, be +resistance."[304] It might in fact have been asked whether the Dukes +of Leeds and Shrewsbury, then sitting in judgment on Sacheverell (and +who afterwards voted him not guilty) might not have been convicted of +treason, if the Prince of Orange had failed of success?[305] The +advocates indeed of the prisoner made so many concessions as amounted +to an abandonment of all the general question. They relied chiefly on +numerous passages in the homilies, and most approved writers of the +Anglican church, asserting the duty of unbounded passive obedience. +But the managers eluded these in their reply with decent respect.[306] +The Lords voted Sacheverell guilty by a majority of 67 to 59; several +voting on each side rather according to their present faction than +their own principles. They passed a slight sentence, interdicting him +only from preaching for three years. This was deemed a sort of triumph +by his adherents; but a severe punishment on a wretch so insignificant +would have been misplaced; and the sentence may be compared to the +nominal damages sometimes given in a suit instituted for the trial of +a great right. + +_Revolution in the ministry under Anne._--The shifting combinations of +party in the reign of Anne, which affected the original distinctions +of whig and tory, though generally known, must be shortly noticed. The +queen, whose understanding and fitness for government were below +mediocrity, had been attached to the tories, and bore an antipathy to +her predecessor. Her first ministry, her first parliament, gave +presage of a government to be wholly conducted by that party. But this +prejudice was counteracted by the persuasions of that celebrated +favourite, the wife of Marlborough, who, probably from some personal +resentments, had thrown her influence into the scale of the whigs. The +well known records of their conversation and correspondence present a +strange picture of good-natured feebleness on one side, and of +ungrateful insolence on the other. But the interior of a court will +rarely endure daylight. Though Godolphin and Marlborough, in whom the +queen reposed her entire confidence, had been thought tories, they +became gradually alienated from that party, and communicated their own +feelings to the queen. The House of Commons very reasonably declined +to make an hereditary grant to the latter out of the revenues of the +post-office in 1702, when he had performed no extraordinary services; +though they acceded to it without hesitation after the battle of +Blenheim.[307] This gave some offence to Anne; and the chief tory +leaders in the cabinet, Rochester, Nottingham, and Buckingham, +displaying a reluctance to carry on the war with such vigour as +Marlborough knew to be necessary, were soon removed from office. Their +revengeful attack on the queen, in the address to invite the Princess +Sophia, made a return to power hopeless for several years. Anne +however entertained a desire very natural to an English sovereign, yet +in which none but a weak one will expect to succeed, of excluding +chiefs of parties from her councils. Disgusted with the tories, she +was loth to admit the whigs; and thus Godolphin's administration, from +1704 to 1708, was rather suddenly supported, sometimes indeed +thwarted, by that party. Cowper was made chancellor against the +queen's wishes;[308] but the junto, as it was called, of five eminent +whig peers, Somers, Halifax, Wharton, Orford, and Sunderland, were +kept out through the queen's dislike, and in some measure, no +question, through Godolphin's jealousy. They forced themselves into +the cabinet about 1708; and effected the dismissal of Harley and St. +John, who, though not of the regular tory school in connection or +principle, had already gone along with that faction in the late reign, +and were now reduced by their dismissal to unite with it.[309] The +whig ministry of Queen Anne, so often talked of, cannot in fact be +said to have existed more than two years, from 1708 to 1710; her +previous administration having been at first tory, and afterwards of a +motley complexion, though depending for existence on the great whig +interest which it in some degree proscribed. Every one knows that this +ministry was precipitated from power through the favourite's abuse of +her ascendancy, become at length intolerable to the most forbearing of +queens and mistresses, conspiring with another intrigue of the +bedchamber, and the popular clamour against Sacheverell's impeachment. +It seems rather an humiliating proof of the sway which the feeblest +prince enjoys even in a limited monarchy, that the fortunes of Europe +should have been changed by nothing more noble than the insolence of +one waiting-woman and the cunning of another. It is true that this was +effected by throwing the weight of the Crown into the scale of a +powerful faction; yet the house of Bourbon would probably not have +reigned beyond the Pyrenees, but for Sarah and Abigail at Queen Anne's +toilet. + +_War of the succession._--The object of the war, as it is commonly +called, of the Grand Alliance, commenced in 1702, was, as expressed in +an address of the House of Commons, for preserving the liberties of +Europe and reducing the exorbitant power of France.[310] The +occupation of the Spanish dominions by the Duke of Anjou, on the +authority of the late king's will, was assigned as its justification, +together with the acknowledgment of the pretended Prince of Wales as +successor to his father James. Charles, Archduke of Austria, was +recognised as King of Spain; and as early as 1705 the restoration of +that monarchy to his house is declared in a speech from the throne to +be not only safe and advantageous, but glorious to England.[311] Louis +XIV. had perhaps at no time much hope of retaining for his grandson +the whole inheritance he claimed; and on several occasions made +overtures for negotiation, but such as indicated his design of rather +sacrificing the detached possessions of Italy and the Netherlands than +Spain itself and the Indies.[312] After the battle of Oudenarde, +however, and the loss of Lille in the campaign of 1708, the exhausted +state of France and discouragement of his court induced him to +acquiesce in the cession of the Spanish monarchy as a basis of treaty. +In the conferences of the Hague in 1709, he struggled for a time to +preserve Naples and Sicily; but ultimately admitted the terms imposed +by the allies, with the exception of the famous thirty-seventh article +of the preliminaries, binding him to procure by force or persuasion +the resignation of the Spanish crown by his grandson within two +months. This proposition he declared to be both dishonourable and +impracticable; and, the allies refusing to give way, the negotiation +was broken off. It was renewed the next year at Gertruydenburg; but +the same obstacle still proved insurmountable.[313] + +It has been the prevailing opinion in modern times that the English +ministry, rather against the judgment of their allies of Holland, +insisted upon a condition not indispensable to their security, and too +ignominious for their fallen enemy to accept. Some may perhaps incline +to think that, even had Philip of Anjou been suffered to reign in +Naples, a possession rather honourable than important, the balance of +power would not have been seriously affected, and the probability of +durable peace been increased. This, however, it was not necessary to +discuss. The main question is as to the power which the allies +possessed of securing the Spanish monarchy for the archduke, if they +had consented to waive the thirty-seventh article of the +preliminaries. If indeed they could have been considered as a single +potentate, it was doubtless possible, by means of keeping up great +armies on the frontier, and by the delivery of cautionary towns, to +have prevented the King of France from lending assistance to his +grandson. But, self-interested and disunited as confederacies +generally are, and as the grand alliance had long since become, this +appeared a very dangerous course of policy, if Louis should be playing +an underhand game against his engagements. And this it was not then +unreasonable to suspect, even if we should believe, in despite of some +plausible authorities, that he was really sincere in abandoning so +favourite an interest. The obstinate adherence of Godolphin and Somers +to the preliminaries may possibly have been erroneous; but it by no +means deserves the reproach that has been unfairly bestowed on it; +nor can the whigs be justly charged with protracting the war to enrich +Marlborough, or to secure themselves in power.[314] + +_Treaty of peace broken off._--The conferences at Gertruydenburg were +broken off in July 1710, because an absolute security for the +evacuation of Spain by Philip appeared to be wanting; and within six +months a fresh negotiation was secretly on foot, the basis of which +was his retention of that kingdom. For the administration presided +over by Godolphin had fallen meanwhile; new counsellors, a new +parliament, new principles of government. The tories had from the +beginning come very reluctantly into the schemes of the grand +alliance; though no opposition to the war had ever been shown in +parliament, it was very soon perceived that the majority of that +denomination had their hearts bent on peace.[315] But instead of +renewing the negotiation in concert with the allies (which indeed +might have been impracticable), the new ministers fell upon the course +of a clandestine arrangement, in exclusion of all the other powers, +which led to the signature of preliminaries in September 1711, and +afterwards to the public congress of Utrecht, and the celebrated +treaty named from that town. Its chief provisions are too well known +to be repeated. + +_Arguments for and against the treaty of Utrecht._--The arguments in +favour of a treaty of pacification, which should abandon the great +point of contest, and leave Philip in possession of Spain and America, +were neither few nor inconsiderable. 1. The kingdom had been +impoverished by twenty years of uninterruptedly augmented taxation; +the annual burthens being triple in amount of those paid before the +revolution. Yet, amidst these sacrifices, we had the mortification of +finding a debt rapidly increasing, whereof the mere interest far +exceeded the ancient revenues of the Crown, to be bequeathed, like an +hereditary curse, to unborn ages. Though the supplies had been raised +with less difficulty than in the late reign, and the condition of +trade was less unsatisfactory, the landed proprietors saw with +indignation the silent transfer of their wealth to new men, and hated +the glory that was bought by their own degradation. Was it not to be +feared that they might hate also the revolution, and the protestant +succession that depended on it, when they tasted these fruits it had +borne? Even the army had been recruited by violent means unknown to +our constitution, yet such as the continual loss of men, with a +population at the best stationary, had perhaps rendered +necessary.[316] + +2. The prospect of reducing Spain to the archduke's obedience was +grown unfavourable. It was at best an odious work, and not very +defensible on any maxims of national justice, to impose a sovereign +on a great people in despite of their own repugnance, and what they +deemed their loyal obligation. Heaven itself might shield their +righteous cause, and baffle the selfish rapacity of human politics. +But what was the state of the war at the close of 1710? The surrender +of 7000 English under Stanhope at Brihuega had ruined the affairs of +Charles, which in fact had at no time been truly prosperous, and +confined him to the single province sincerely attached to him, +Catalonia. As it was certain that Philip had spirit enough to continue +the war, even if abandoned by his grandfather, and would have the +support of almost the entire nation, what remained but to carry on a +very doubtful contest for the subjugation of that extensive kingdom? +In Flanders, no doubt, the genius of Marlborough kept still the +ascendant; yet France had her Fabius in Villars; and the capture of +three or four small fortresses in a whole campaign did not presage a +rapid destruction of the enemy's power. + +3. It was acknowledged that the near connection of the monarchs on the +thrones of France and Spain could not be desired from Europe. Yet the +experience of ages had shown how little such ties of blood determined +the policy of courts; a Bourbon on the throne of Spain could not but +assert the honour, and even imbibe the prejudices, of his subjects; +and as the two nations were in all things opposite, and must clash in +their public interests, there was little reason to fear a subserviency +in the cabinet of Madrid, which, even in that absolute monarchy, could +not be displayed against the general sentiment. + +4. The death of the Emperor Joseph, and election of the Archduke +Charles in his room, which took place in the spring of 1711, changed +in no small degree the circumstances of Europe. It was now a struggle +to unite the Spanish and Austrian monarchies under one head. Even if +England might have little interest to prevent this, could it be +indifferent to the smaller states of Europe that a family not less +ambitious and encroaching than that of Bourbon should be so enormously +aggrandised? France had long been to us the only source of +apprehension; but to some states, to Savoy, to Switzerland, to Venice, +to the principalities of the empire, she might justly appear a very +necessary bulwark against the aggressions of Austria. The alliance +could not be expected to continue faithful and unanimous, after so +important an alteration in the balance of power. + +5. The advocates of peace and adherents of the new ministry stimulated +the national passions of England by vehement reproaches of the allies. +They had thrown, it was contended, in despite of all treaties, an +unreasonable proportion of expense upon a country not directly +concerned in their quarrel, and rendered a negligent or criminal +administration their dupes or accomplices. We were exhausting our +blood and treasure to gain kingdoms for the house of Austria which +insulted, and the best towns of Flanders for the states-general who +cheated us. The barrier treaty of Lord Townshend was so extravagant, +that one might wonder at the presumption of Holland in suggesting its +articles, much more at the folly of our government in acceding to +them. It laid the foundation of endless dissatisfaction on the side of +Austria, thus reduced to act as the vassal of a little republic in her +own territories, and to keep up fortresses at her own expense, which +others were to occupy. It might be anticipated that, at some time, a +sovereign of that house would be found more sensible to ignominy than +to danger, who would remove this badge of humiliation by dismantling +the fortifications which were thus to be defended. Whatever +exaggeration might be in these clamours, they were sure to pass for +undeniable truths with a people jealous of foreigners, and prone to +believe itself imposed upon, from a consciousness of general ignorance +and credulity. + +These arguments were met by answers not less confident, though less +successful at the moment, than they had been deemed convincing by the +majority of politicians in later ages. It was denied that the +resources of the kingdom were so much enfeebled; the supplies were +still raised without difficulty; commerce had not declined; public +credit stood high under the Godolphin ministry; and it was especially +remarkable that the change of administration, notwithstanding the +prospect of peace, was attended by a great fall in the price of +stocks. France, on the other hand, was notoriously reduced to the +utmost distress; and, though it were absurd to allege the misfortunes +of our enemy by way of consolation for our own, yet the more exhausted +of the two combatants was naturally that which ought to yield; and it +was not for the honour of our free government that we should be +outdone in magnanimous endurance for the sake of the great interests +of ourselves and our posterity by the despotism we so boastfully +scorned.[317] The King of France had now for half a century been +pursuing a system of encroachment on the neighbouring states, which +the weakness of the two branches of the Austrian house, and the +perfidiousness of the Stuarts, not less than the valour of his troops +and skill of his generals, had long rendered successful. The tide had +turned for the first time in the present war; victories more splendid +than were recorded in modern warfare had illustrated the English name. +Were we spontaneously to relinquish these great advantages, and two +years after Louis had himself consented to withdraw his forces from +Spain, our own arms having been in the meantime still successful on +the most important scene of the contest, to throw up the game in +despair, and leave him far more the gainer at the termination of this +calamitous war, than he had been after those triumphant campaigns +which his vaunting medals commemorate? Spain of herself could not +resist the confederates, even if united in support of Philip; which +was denied as to the provinces composing the kingdom of Arragon, and +certainly as to Catalonia; it was in Flanders that Castile was to be +conquered; it was France that we were to overcome; and now that her +iron barrier had been broken through, when Marlborough was preparing +to pour his troops upon the defenceless plains of Picardy, could we +doubt that Louis must in good earnest abandon the cause of his +grandson, as he had already pledged himself in the conferences of +Gertruydenburg? + +2. It was easy to slight the influence which the ties of blood exert +over kings. Doubtless they are often torn asunder by ambition or +wounded pride. But it does not follow that they have no efficacy; and +the practice of courts in cementing alliances by intermarriage seems +to show that they are not reckoned indifferent. It might, however, be +admitted that a king of Spain, such as she had been a hundred years +before, would probably be led by the tendency of his ambition into a +course of policy hostile to France. But that monarchy had long been +declining; great rather in name and extent of dominion than intrinsic +resources, she might perhaps rally for a short period under an +enterprising minister; but with such inveterate abuses of government, +and so little progressive energy among the people, she must gradually +sink lower in the scale of Europe, till it might become the chief +pride of her sovereigns that they were the younger branches of the +house of Bourbon. To cherish this connection would be the policy of +the court of Versailles; there would result from it a dependent +relation, an habitual subserviency of the weaker power, a family +compact of perpetual union, always opposed to Great Britain. In +distant ages, and after fresh combinations of the European +commonwealth should have seemed almost to efface the recollection of +Louis XIV. and the war of the succession, the Bourbons on the French +throne might still claim a sort of primogenitary right to protect the +dignity of the junior branch by interference with the affairs of +Spain; and a late posterity of those who witnessed the peace of +Utrecht might be entangled by its improvident concessions. + +3. That the accession of Charles to the empire rendered his possession +of the Spanish monarchy in some degree less desirable, need not be +disputed; though it would not be easy to prove that it could endanger +England, or even the smaller states, since it was agreed on all hands +that he was to be master of Milan and Naples. But against this, +perhaps imaginary, mischief the opponents of the treaty set the risk +of seeing the crowns of France and Spain united on the head of Philip. +In the years 1711 and 1712 the dauphin, the Duke of Burgundy, and the +Duke of Berry, were swept away. An infant stood alone between the King +of Spain and the French succession. The latter was induced, with some +unwillingness, to sign a renunciation of this contingent inheritance. +But it was notoriously the doctrine of the French court that such +renunciations were invalid; and the sufferings of Europe were chiefly +due to this tenet of indefeasible royalty. It was very possible that +Spain would never consent to this union, and that a fresh league of +the great powers might be formed to prevent it; but, if we had the +means of permanently separating the two kingdoms in our hands, it was +strange policy to leave open this door for a renewal of the quarrel. + +But whatever judgment we may be disposed to form as to the political +necessity of leaving Spain and America in the possession of Philip, it +is impossible to justify the course of that negotiation which ended in +the peace of Utrecht. It was at best a dangerous and inauspicious +concession, demanding every compensation that could be devised, and +which the circumstances of the war entitled us to require. France was +still our formidable enemy; the ambition of Louis was still to be +dreaded, his intrigues to be suspected. That an English minister +should have thrown himself into the arms of this enemy at the first +overture of negotiation; that he should have renounced advantages upon +which he might have insisted; that he should have restored Lille, and +almost attempted to procure the sacrifice of Tournay; that throughout +the whole correspondence and in all personal interviews with Torcy he +should have shown the triumphant Queen of Great Britain more eager for +peace than her vanquished adversary; that the two courts should have +been virtually conspiring against those allies, without whom we had +bound ourselves to enter on no treaty; that we should have withdrawn +our troops in the midst of a campaign, and even seized upon the towns +of our confederates while we left them exposed to be overcome by a +superior force; that we should have first deceived those confederates +by the most direct falsehood in denying our clandestine treaty, and +then dictated to them its acceptance, are facts so disgraceful to +Bolingbroke, and in somewhat a less degree to Oxford, that they can +hardly be palliated by establishing the expediency of the treaty +itself. + +_Intrigues of the Jacobites._--For several years after the treaty of +Ryswick the intrigues of ambitious and discontented statesmen, and of +a misled faction in favour of the exiled family, grew much colder; the +old age of James and the infancy of his son being alike incompatible +with their success. The jacobites yielded a sort of provisional +allegiance to the daughter of their king, deeming her, as it were, a +regent in the heir's minority, and willing to defer the consideration +of his claim till he should be competent to make it, or to acquiesce +in her continuance upon the throne, if she could be induced to secure +his reversion.[318] Meanwhile, under the name of tories and +high-church men, they carried on a more dangerous war by sapping the +bulwarks of the revolution settlement. The disaffected clergy poured +forth sermons and libels, to impugn the principles of the whigs or +traduce their characters. Twice a year especially, on the 30th of +January and 29th of May, they took care that every stroke upon +rebellion and usurpation should tell against the expulsion of the +Stuarts and the Hanover succession. They inveighed against the +dissenters and the toleration. They set up pretences of loyalty +towards the queen, descanting sometimes on her hereditary right, in +order to throw a slur on the settlement. They drew a transparent veil +over their designs, which might screen them from prosecution, but +could not impose, nor was meant to impose, on the reader. Among these +the most distinguished was Leslie, author of a periodical sheet called +the _Rehearsal_, printed weekly from 1704 to 1708; and as he, though +a non-juror, and unquestionable jacobite, held only the same language +as Sacheverell, and others who affected obedience to the government, +we cannot much be deceived in assuming that their views were entirely +the same.[319] + +The court of St. Germains, in the first years of the queen, preserved +a secret connection with Godolphin and Marlborough, though justly +distrustful of their sincerity; nor is it by any means clear that they +made any strong professions.[320] Their evident determination to +reduce the power of France, their approximation towards the whigs, the +averseness of the duchess to jacobite principles, taught at length +that unfortunate court how little it had to expect from such ancient +friends. The Scotch jacobites, on the other hand, were eager for the +young king's immediate restoration; and their assurances finally +produced his unsuccessful expedition to the coast in 1708.[321] This +alarmed the queen, who at least had no thoughts of giving up any part +of her dominions, and probably exasperated the two ministers.[322] +Though Godolphin's partiality to the Stuart cause was always +suspected, the proofs of his intercourse with their emissaries are not +so strong as against Marlborough; who, so late as 1711, declared +himself more positively than he seems hitherto to have done in favour +of their restoration.[323] But the extreme selfishness and treachery +of his character makes it difficult to believe that he had any further +view than to secure himself in the event of a revolution which he +judged probable. His interest, which was always his deity, did not lie +in that direction; and his great sagacity must have perceived it. + +_Just alarm for the Hanover succession._--A more promising overture +had by this time been made to the young claimant from an opposite +quarter. Mr. Harley, about the end of 1710, sent the Abbe Gaultier to +Marshal Berwick (natural son of James II. by Marlborough's sister), +with authority to treat about the restoration; Anne of course +retaining the Crown for her life, and securities being given for the +national religion and liberties. The conclusion of peace was a +necessary condition. The jacobites in the English parliament were +directed in consequence to fall in with the court, which rendered it +decidedly superior. Harley promised to send over in the next year a +plan for carrying that design into effect. But neither at that time, +nor during the remainder of the queen's life, did this dissembling +minister take any further measures, though still in strict connection +with that party at home, and with the court of St. Germains.[324] It +was necessary, he said, to proceed gently, to make the army their own, +to avoid suspicions which would be fatal. It was manifest that the +course of his administration was wholly inconsistent with his +professions; the friends of the house of Stuart felt that he betrayed, +though he did not delude them; but it was the misfortune of this +minister, or rather the just and natural reward of crooked counsels, +that those he meant to serve could neither believe in his friendship, +nor forgive his appearances of enmity. It is doubtless not easy to +pronounce on the real intentions of men so destitute of sincerity as +Harley and Marlborough; but, in believing the former favourable to the +protestant succession, which he had so eminently contributed to +establish, we accede to the judgment of those contemporaries who were +best able to form one, and especially of the very jacobites with whom +he tampered. And this is so powerfully confirmed by most of his public +measures, his averseness to the high tories, and their consequent +hatred of him, his irreconcilable disagreement with those of his +colleagues who looked most to St. Germains, his frequent attempts to +renew a connection with the whigs, his contempt of the jacobite creed +of government, and the little prospect he could have had of retaining +power on such a revolution, that, so far at least as may be presumed +from what has hitherto become public, there seems no reason for +counting the Earl of Oxford among those from whom the house of Hanover +had any enmity to apprehend.[325] + +The pretender, meanwhile, had friends in the tory government more +sincere probably and zealous than Oxford. In the year 1712 Lord +Bolingbroke, the Duke of Buckingham, president of the council, and the +Duke of Ormond, were engaged in this connection.[326] The last of +these, being in the command of the army, little glory as that brought +him, might become an important auxiliary. Harcourt, the chancellor, +though the proofs are not, I believe, so direct, has always been +reckoned in the same interest. Several of the leading Scots peers, +with little disguise, avowed their adherence to it; especially the +Duke of Hamilton, who, luckily perhaps for the kingdom, lost his life +in a duel, at the moment when he was setting out on an embassy to +France. The rage expressed by that faction at his death betrays the +hopes they had entertained from him. A strong phalanx of tory members, +called the October Club, though by no means entirely jacobite, were +chiefly influenced by those who were such. In the new parliament of +1713, the queen's precarious health excited the Stuart partisans to +press forward with more zeal. The masque was more than half drawn +aside; and, vainly urging the ministry to fulfil their promises while +yet in time, they cursed the insidious cunning of Harley and the +selfish cowardice of the queen. Upon her they had for some years +relied. Lady Masham, the bosom favourite, was entirely theirs; and +every word, every look of the sovereign, had been anxiously observed, +in the hope of some indication that she would take the road which +affection and conscience, as they fondly argued, must dictate. But, +whatever may have been the sentiments of Anne, her secret was never +divulged, nor is there, as I apprehend, however positively the +contrary is sometimes asserted, any decisive evidence whence we may +infer that she even intended her brother's restoration.[327] The +weakest of mankind have generally an instinct of self-preservation +which leads them right, and perhaps more than stronger minds possess; +and Anne could scarcely help perceiving that her own deposition from +the throne would be the natural consequence of once admitting the +reversionary right of one whose claim was equally good to the +possession. The assertors of hereditary descent could acquiesce in her +usurpation no longer than they found it necessary for their object; if +her life should be protracted to an ordinary duration, it was almost +certain that Scotland first, and afterwards England, would be wrested +from her impotent grasp. Yet, though I believe the queen to have been +sensible of this, it is impossible to pronounce with certainty that +either through pique against the house of Hanover, or inability to +resist her own counsellors, she might not have come into the scheme of +altering the succession. + +But, if neither the queen nor her lord treasurer were inclined to take +that vigorous course which one party demanded, they at least did +enough to raise just alarm in the other; and it seems strange to deny +that the protestant succession was in danger. As Lord Oxford's +ascendancy diminished, the signs of impending revolution became less +equivocal. Adherents of the house of Stuart were placed in civil and +military trust; an Irish agent of the pretender was received in the +character of envoy from the court of Spain; the most audacious +manifestations of disaffection were overlooked.[328] Several even in +parliament spoke with contempt and aversion of the house of +Hanover.[329] It was surely not unreasonable in the whig party to meet +these assaults of the enemy with something beyond the ordinary weapons +of an opposition. They affected no apprehensions that it was absurd to +entertain. Those of the opposite faction, who wished well to the +protestant interest, and were called Hanoverian tories, came over to +their side, and joined them on motions that the succession was in +danger.[330] No one hardly, who either hoped or dreaded the +consequences, had any doubts upon this score; and it is only a few +moderns who have assumed the privilege of setting aside the persuasion +of contemporaries upon a subject which contemporaries were best able +to understand.[331] Are we then to censure the whigs for urging on the +elector of Hanover, who, by a strange apathy or indifference, seemed +negligent of the great prize reserved for him; or is the bold step of +demanding a writ of summons for the electoral prince as Duke of +Cambridge to pass for a factious insult on the queen, because, in her +imbecility, she was leaving the Crown to be snatched at by the first +comer, even if she were not, as they suspected, in some conspiracy to +bestow it on a proscribed heir?[332] I am much inclined to believe, +that the great majority of the nation were in favour of the protestant +succession; but, if the princes of the house of Brunswick had seemed +to retire from the contest, it might have been impracticable to resist +a predominant faction in the council and in parliament; especially if +the son of James, listening to the remonstrances of his English +adherents, could have been induced to renounce a faith which, in the +eyes of too many, was the sole pretext for his exclusion.[333] + +_Accession of George I._--The queen's death, which came at last +perhaps rather more quickly than was foreseen, broke for ever the fair +prospects of her family. George I., unknown and absent, was proclaimed +without a single murmur, as if the Crown had passed in the most +regular descent. But this was a momentary calm. The jacobite party, +recovering from the first consternation, availed itself of its usual +arms, and of those with which the new king injudiciously supplied it. +Many of the tories who would have acquiesced in the act of settlement, +seem to have looked on a leading share in the administration as +belonging of right to what was called the church party, and complained +of the formation of a ministry on the whig principle. In later times +also, it has been not uncommon to censure George I. for governing, as +it is called, by a faction. Nothing can be more unreasonable than this +reproach. Was he to select those as his advisers, who had been, as we +know and as he believed, in a conspiracy with his competitor? Was Lord +Oxford, even if the king thought him faithful, capable of uniting with +any public men, hated as he was on each side? Were not the tories as +truly a faction as their adversaries, and as intolerant during their +own power?[334] Was there not, above all, a danger that, if some of +one denomination were drawn by pique and disappointment into the +ranks of the jacobites, the whigs, on the other hand, so ungratefully +and perfidiously recompensed for their arduous services to the house +of Hanover, might think all royalty irreconcilable with the principles +of freedom, and raise up a republican party, of which the scattered +elements were sufficiently discernible in the nation?[335] The +exclusion indeed of the whigs would have been so monstrous both in +honour and policy, that the censure has generally fallen on their +alleged monopoly of public offices. But the mischiefs of a disunited, +hybrid ministry had been sufficiently manifest in the two last reigns; +nor could George, a stranger to his people and their constitution, +have undertaken without ruin that most difficult task of balancing +parties and persons, to which the great mind of William had proved +unequal. Nor is it true that the tories, as such, were proscribed; +those who chose to serve the court met with court favour; and in the +very outset the few men of sufficient eminence, who had testified +their attachment to the succession, received equitable rewards; but, +most happily for himself and the kingdom, most reasonably according to +the principles on which alone his throne could rest, the first prince +of the house of Brunswick gave a decisive preponderance in his favour +to Walpole and Townshend above Harcourt and Bolingbroke. + +_Great disaffection in the kingdom._--The strong symptoms of +disaffection which broke out in a few months after the king's +accession, and which can be ascribed to no grievance, unless the +formation of a whig ministry was to be termed one, prove the taint of +the late times to have been deep seated and extensive.[336] The +clergy, in very many instances, were a curse rather than a blessing to +those over whom they were set; and the people, while they trusted that +from those polluted fountains they could draw the living waters of +truth, became the dupes of factious lies and sophistry. Thus +encouraged, the heir of the Stuarts landed in Scotland; and the spirit +of that people being in a great measure jacobite, and very generally +averse to the union, he met with such success as, had their +independence subsisted, would probably have established him on the +throne. But Scotland was now doomed to wait on the fortunes of her +more powerful ally; and, on his invasion of England, the noisy +partisans of hereditary right discredited their faction by its +cowardice. Few rose in arms to support the rebellion, compared with +those who desired its success, and did not blush to see the gallant +savages of the Highlands shed their blood that a supine herd of +priests and country gentlemen might enjoy the victory. The severity of +the new government after the rebellion has been often blamed; but I +know not whether, according to the usual rules of policy, it can be +proved that the execution of two peers and thirty other persons, taken +with arms in flagrant rebellion, was an unwarrantable excess of +punishment. There seems a latent insinuation in those who have argued +on the other side, as if the jacobite rebellion, being founded on an +opinion of right, was more excusable than an ordinary treason--a +proposition which it would not have been quite safe for the reigning +dynasty to acknowledge. Clemency however is the standing policy of +constitutional governments, as severity is of despotism; and, if the +ministers of George I. might have extended it to part of the inferior +sufferers (for surely those of higher rank were the first to be +selected) with safety to their master, they would have done well in +sparing him the odium that attends all political punishments.[337] + +_Impeachment of tory ministers._--It will be admitted on all hands, at +the present day, that the charge of high treason in the impeachments +against Oxford and Bolingbroke was an intemperate excess of resentment +at their scandalous dereliction of the public honour and interest. The +danger of a sanguinary revenge inflamed by party spirit is so +tremendous that the worst of men ought perhaps to escape rather than +suffer by a retrospective, or, what is no better, a constructive, +extension of the law. The particular charge of treason was, that in +the negotiation for peace they had endeavoured to procure the city of +Tournay for the King of France; which was maintained to be an adhering +to the queen's enemies within the statute of Edward III.[338] But, as +this construction could hardly be brought within the spirit of that +law, and the motive was certainly not treasonable or rebellious, it +would have been incomparably more constitutional to treat so gross a +breach of duty as a misdemeanour of the highest kind. This angry +temper of the Commons led ultimately to the abandonment of the whole +impeachment against Lord Oxford; the upper house, though it had +committed Oxford to the Tower, which seemed to prejudge the question +as to the treasonable character of the imputed offence, having two +years afterwards resolved that the charge of treason should be first +determined, before they would enter on the articles of less +importance; a decision with which the Commons were so ill satisfied +that they declined to go forward with the prosecution. The resolution +of the Peers was hardly conformable to precedent, to analogy, or to +the dignity of the House of Commons, nor will it perhaps be deemed +binding on any future occasion; but the ministers prudently suffered +themselves to be beaten rather than aggravate the fever of the people +by a prosecution so full of delicate and hazardous questions.[339] + +One of these questions, and by no means the least important, would +doubtless have arisen upon a mode of defence alleged by the Earl of +Oxford in the house, when the articles of impeachment were brought up. +"My lords," he said, "if ministers of state, acting by the immediate +commands of their sovereign, are afterwards to be made accountable for +their proceedings, it may, one day or other, be the case of all the +members of this august assembly."[340] It was indeed undeniable that +the queen had been very desirous of peace, and a party, as it were, to +all the counsels that tended to it. Though it was made a charge +against the impeached lords, that the instructions to sign the secret +preliminaries of 1711 with M. Mesnager, on the part of France, were +not under the great seal, nor countersigned by any minister, they were +certainly under the queen's signet, and had all the authority of her +personal command. This must have brought on the yet unsettled and very +delicate question of ministerial responsibility in matters where the +sovereign has interposed his own command; a question better reserved, +it might then appear, for the loose generalities of debate than to be +determined with the precision of criminal law. Each party, in fact, +had in its turn made use of the queen's personal authority as a +shield; the whigs availed themselves of it to parry the attack made on +their ministry, after its fall, for an alleged mismanagement of the +war in Spain before the battle of Almanza;[341] and the modern +constitutional theory was by no means so established in public opinion +as to bear the rude brunt of a legal argument. Anne herself, like all +her predecessors, kept in her own hands the reins of power; jealous, +as such feeble characters usually are, of those in whom she was forced +to confide (especially after the ungrateful return of the Duchess of +Marlborough for the most affectionate condescension), and obstinate in +her judgment, from the very consciousness of its weakness, she took a +share in all business, frequently presided in meetings of the cabinet, +and sometimes gave directions without their advice.[342] The defence +set up by Lord Oxford would undoubtedly not be tolerated at present, +if alleged in direct terms, by either house of parliament; however it +may sometimes be deemed a sufficient apology for a minister, by those +whose bias is towards a compliance with power, to insinuate that he +must either obey against his conscience, or resign against his will. + +_Bill for septennial parliaments._--Upon this prevalent disaffection, +and the general dangers of the established government, was founded +that measure so frequently arraigned in later times, the substitution +of septennial for triennial parliaments. The ministry deemed it too +perilous for their master, certainly for themselves, to encounter a +general election in 1717; but the arguments adduced for the +alteration, as it was meant to be permanent, were drawn from its +permanent expediency. Nothing can be more extravagant than what is +sometimes confidently pretended by the ignorant, that the legislature +exceeded its rights by this enactment; or, if that cannot legally be +advanced, that it at least violated the trust of the people, and broke +in upon the ancient constitution. The law for triennial parliaments +was of little more than twenty years' continuance. It was an +experiment which, as was argued, had proved unsuccessful; it was +subject, like every other law, to be repealed entirely, or to be +modified at discretion. As a question of constitutional expediency, +the septennial bill was doubtless open at the time to one serious +objection. Every one admitted that a parliament subsisting +indefinitely during a king's life, but exposed at all times to be +dissolved at his pleasure, would become far too little independent of +the people, and far too much so upon the Crown. But, if the period of +its continuance should thus be extended from three to seven years, the +natural course of encroachment, or some momentous circumstances like +the present, might lead to fresh prolongations, and gradually to an +entire repeal of what had been thought so important a safeguard of its +purity. Time has happily put an end to apprehensions which are not on +that account to be reckoned unreasonable.[343] + +Many attempts have been made to obtain a return to triennial +parliaments; the most considerable of which was in 1733, when the +powerful talents of Walpole and his opponents were arrayed on this +great question. It has been less debated in modern times than some +others connected with parliamentary reformation. So long indeed as the +sacred duties of choosing the representatives of a free nation shall +be perpetually disgraced by tumultuary excess, or, what is far worse, +by gross corruption and ruinous profusion (evils which no effectual +pains are taken to redress, and which some apparently desire to +perpetuate, were it only to throw discredit upon the popular part of +the constitution), it would be evidently inexpedient to curtail the +present duration of parliament. But even, independently of this not +insuperable objection, it may well be doubted whether triennial +elections would make much perceptible difference in the course of +government, and whether that difference would on the whole be +beneficial. It will be found, I believe, on a retrospect of the last +hundred years, that the House of Commons would have acted, in the +main, on the same principles, had the elections been more frequent; +and certainly the effects of a dissolution, when it has occurred in +the regular order, have seldom been very important. It is also to be +considered whether an assembly which so much takes to itself the +character of a deliberative council on all matters of policy, ought to +follow with the precision of a weather-glass the unstable prejudices +of the multitude. There are many who look too exclusively at the +functions of parliament, as the protector of civil liberty against the +Crown; functions, it is true, most important, yet not more +indispensable than those of steering a firm course in domestic and +external affairs, with a circumspectness and providence for the +future, which no wholly democratical government has ever yet +displayed. It is by a middle position between an oligarchical senate, +and a popular assembly, that the House of Commons is best preserved +both in its dignity and usefulness, subject indeed to swerve towards +either character by that continual variation of forces which act upon +the vast machine of our commonwealth. But what seems more important +than the usual term of duration, is that this should be permitted to +take its course, except in cases where some great change of national +policy may perhaps justify its abridgment. The Crown would obtain a +very serious advantage over the House of Commons, if it should become +an ordinary thing to dissolve parliament for some petty ministerial +interest, or to avert some unpalatable resolution. Custom appears to +have established, and with some convenience, the substitution of six +for seven years as the natural life of a House of Commons; but an +habitual irregularity in this respect might lead in time to +consequences that most men would deprecate. And it may here be +permitted to express a hope that the necessary dissolution of +parliament within six months of a demise of the Crown will not long be +thought congenial to the spirit of our modern government. + +_Peerage bill._--A far more unanimous sentence has been pronounced by +posterity upon another great constitutional question, that arose under +George I. Lord Sunderland persuaded the king to renounce his important +prerogative of making peers; and a bill was supported by the ministry, +limiting the House of Lords, after the creation of a very few more, to +its actual numbers. The Scots were to have twenty-five hereditary, +instead of sixteen elective, members of the house; a provision neither +easily reconciled to the union, nor required by the general tenor of +the bill. This measure was carried with no difficulty through the +upper house, whose interests were so manifestly concerned in it. But +a similar motive, concurring with the efforts of a powerful malcontent +party, caused its rejection by the Commons.[344] It was justly thought +a proof of the king's ignorance or indifference in everything that +concerned his English Crown, that he should have consented to so +momentous a sacrifice; and Sunderland was reproached for so audacious +an endeavour to strengthen his private faction at the expense of the +fundamental laws of the monarchy. Those who maintained the expediency +of limiting the peerage, had recourse to uncertain theories as to the +ancient constitution, and denied this prerogative to have been +originally vested in the Crown. A more plausible argument was derived +from the abuse, as it was then generally accounted, of creating at +once twelve peers in the late reign, for the sole end of establishing +a majority for the court; a resource which would be always at the +command of successive factions, till the British nobility might become +as numerous and venal as that of some European states. It was argued +that there was a fallacy in concluding the collective power of the +House of Lords to be augmented by its limitation, because every single +peer would evidently become of more weight in the kingdom; that the +wealth of the whole body must bear a less proportion to that of the +nation, and would possibly not exceed that of the lower house, while +on the other hand it might be indefinitely multiplied by fresh +creations; that the Crown would lose one great engine of corrupt +influence over the Commons, which could never be truly independent, +while its principal members were looking on it as a stepping-stone to +hereditary honours.[345] + +Though these reasonings however are not destitute of considerable +weight, and the unlimited prerogative of augmenting the peerage is +liable to such abuses, at least in theory, as might overthrow our form +of government; while, in the opinion of some, whether erroneous or +not, it has actually been exerted with too little discretion, the +arguments against any legal limitation seem more decisive. The Crown +has been carefully restrained by statutes, and by the responsibility +of its advisers; the Commons, if they transgress their boundaries, are +annihilated by a proclamation; but against the ambition, or, what is +much more likely, the perverse haughtiness of the aristocracy, the +constitution has not furnished such direct securities. And, as this +would be prodigiously enhanced by a consciousness of their power, and +by a sense of self-importance which every peer would derive from it +after the limitation of their numbers, it might break out in +pretensions very galling to the people, and in an oppressive extension +of privileges which were already sufficiently obnoxious and arbitrary. +It is true that the resource of subduing an aristocratical faction by +the creation of new peers could never be constitutionally employed, +except in the case of a nearly equal balance; but it might usefully +hang over the heads of the whole body, and deter them from any gross +excesses of faction or oligarchical spirit. The nature of our +government requires a general harmony between the two houses of +parliament; and indeed any systematic opposition between them would of +necessity bring on the subordination of one to the other in too marked +a manner; nor had there been wanting within the memory of man, several +instances of such jealous and even hostile sentiments as could only be +allayed by the inconvenient remedies of a prorogation or a +dissolution. These animosities were likely to revive with more +bitterness, when the country gentlemen and leaders of the commons +should come to look on the nobility as a class into which they could +not enter, and the latter should forget more and more, in their +inaccessible dignity, the near approach of that gentry to themselves +in respectability of birth and extent of possessions.[346] + +These innovations on the part of the new government were maintained on +the score of its unsettled state, and want of hold on the national +sentiment. It may seem a reproach to the house of Hanover that, +connected as it ought to have been with the names most dear to English +hearts, the protestant religion and civil liberty, it should have been +driven to try the resources of tyranny, and to demand more authority, +to exercise more control, than had been necessary for the worst of +their predecessors. Much of this disaffection was owing to the cold +reserve of George I., ignorant of the language, alien from the +prejudices of his people, and continually absent in his electoral +dominions, to which he seemed to sacrifice the nation's interest and +the security of his own crown. It is certain that the acquisition of +the duchies of Bremen and Verden for Hanover in 1716 exposed Great +Britain to a very serious danger, by provoking the King of Sweden to +join in a league for the restoration of the Pretender.[347] It might +have been impossible (such was the precariousness of our revolution +settlement) to have made the abdication of the electorate a condition +of the house of Brunswick's succession; but the consequences of that +connection, though much exaggerated by the factious and disaffected, +were in various manners detrimental to English interests during these +two reigns; and not the least in that they estranged the affections of +the people from sovereigns whom they regarded as still foreign. + +_Jacobitism among the clergy._--The tory and jacobite factions, as I +have observed, were powerful in the church. This had been the case +ever since the revolution. The avowed non-jurors were busy with the +press; and poured forth, especially during the encouragement they +received in part of Anne's reign, a multitude of pamphlets, sometimes +argumentative, more often virulently libellous. Their idle cry that +the church was in danger, which both houses in 1704 thought fit to +deny by a formal vote, alarmed a senseless multitude. Those who took +the oaths were frequently known partisans of the exiled family; and +those who affected to disclaim that cause, defended the new settlement +with such timid or faithless arms as served only to give a triumph to +the adversary. About the end of William's reign grew up the +distinction of high and low churchmen; the first distinguished by +great pretensions to sacerdotal power, both spiritual and temporal, by +a repugnance to toleration, and by a firm adherence to the tory +principle in the state; the latter by the opposite characteristics. +These were pitched against each other in the two houses of +convocation, an assembly which virtually ceased to exist under George I. + +_Convocation._--The convocation of the province of Canterbury (for +that of York seems never to have been important) is summoned by the +archbishop's writ, under the king's direction, along with every +parliament, to which it bears analogy both in its constituent parts +and in its primary functions. It consists (since the reformation) of +the suffragan bishops, forming the upper house; of the deans, +archdeacons, a proctor or proxy for each chapter, and two from each +diocese, elected by the parochial clergy, who together constitute the +lower house. In this assembly subsidies were granted, and +ecclesiastical canons enacted. In a few instances under Henry VIII. +and Elizabeth, they were consulted as to momentous questions affecting +the national religion; the supremacy of the former was approved in +1533, the articles of faith were confirmed in 1562, by the convocation. +But their power to enact fresh canons without the king's licence, was +expressly taken away by a statute of Henry VIII.; and, even subject to +this condition, is limited by several later acts of parliament (such +as the acts of uniformity under Elizabeth and Charles II., that +confirming, and therefore rendering unalterable, the thirty-nine +articles, those relating to non-residence and other church matters), +and still more perhaps by the doctrine gradually established in +Westminster Hall, that new ecclesiastical canons are not binding on +the laity, so greatly that it will ever be impossible to exercise it +in any effectual manner. The convocation accordingly, with the +exception of 1603, when they established some regulations, and of 1640 +(an unfortunate precedent), when they attempted some more, had little +business but to grant subsidies, which, however, were from the time of +Henry VIII. always confirmed by an act of parliament; an intimation, +no doubt, that the legislature did not wholly acquiesce in their power +even of binding the clergy in a matter of property. This practice of +ecclesiastical taxation was silently discontinued in 1664; at a time +when the authority and pre-eminence of the church stood very high, so +that it could not then have seemed the abandonment of an important +privilege. From this time the clergy have been taxed at the same rate +and in the same manner with the laity.[348] + +It was the natural consequence of this cessation of all business, that +the convocation, after a few formalities, either adjourned itself or +was prorogued by a royal writ; nor had it ever, with the few +exceptions above noticed, sat for more than a few days, till its +supply could be voted. But, about the time of the revolution, the +party most adverse to the new order sedulously propagated a doctrine +that the convocation ought to be advised with upon all questions +affecting the church, and ought even to watch over its interests as +the parliament did over those of the kingdom.[349] The Commons had so +far encouraged this faction as to refer to the convocation the great +question of a reform in the liturgy for the sake of comprehension, as +has been mentioned in the last chapter; and thus put a stop to the +king's design. It was not suffered to sit much during the rest of that +reign, to the great discontent of its ambitious leaders. The most +celebrated of these, Atterbury, published a book, entitled _The Rights +and Privileges of an English Convocation_, in answer to one by Wake, +afterwards Archbishop of Canterbury. The speciousness of the former, +sprinkled with competent learning on the subject, a graceful style, +and an artful employment of topics, might easily delude, at least, the +willing reader. Nothing indeed could, on reflection, appear more +inconclusive than Atterbury's arguments. Were we even to admit the +perfect analogy of a convocation to a parliament, it could not be +doubted that the king may, legally speaking, prorogue the latter at +his pleasure; and that, if neither money were required to be granted +nor laws to be enacted, a session would be very short. The church had +by prescription a right to be summoned in convocation; but no +prescription could be set up for its longer continuance than the Crown +thought expedient; and it was too much to expect that William III. was +to gratify his half-avowed enemies, with a privilege of remonstrance +and interposition they had never enjoyed. In the year 1701 the lower +house of convocation pretended to a right of adjourning to a different +day from that fixed by the upper, and consequently of holding separate +sessions. They set up other unprecedented claims to independence, +which were checked by a prorogation.[350] Their aim was in all +respects to assimilate themselves to the House of Commons, and thus +both to set up the convocation itself as an assembly collateral to +parliament, and in the main independent of it, and to maintain their +co-ordinate power and equality in synodical dignity to the prelates' +house. The succeeding reign, however, began under tory auspices; and +the convocation was in more activity for some years than at any former +period. The lower house of that assembly still distinguished itself by +the most factious spirit, and especially by insolence towards the +bishops, who passed in general for whigs, and whom, while pretending +to assert the divine rights of episcopacy, they laboured to deprive of +that pre-eminence in the Anglican synod which the ecclesiastical +constitution of the kingdom had bestowed on them.[351] None was more +prominent in their debates than Atterbury himself, whom, in the zenith +of tory influence, at the close of her reign, the queen reluctantly +promoted to the see of Rochester. + +The new government at first permitted the convocation to hold its +sittings. But they soon excited a flame which consumed themselves by +an attack on Hoadley, Bishop of Bangor, who had preached a sermon +abounding with those principles concerning religious liberty, of which +he had long been the courageous and powerful assertor.[352] The lower +house of convocation thought fit to denounce, through the report of a +committee, the dangerous tenets of this discourse, and of a work not +long before published by the bishop. A long and celebrated war of pens +instantly commenced, known by the name of the Bangorian controversy; +managed, perhaps on both sides, with all the chicanery of polemical +writers, and disgusting both from its tediousness, and from the +manifest unwillingness of the disputants to speak ingenuously what +they meant.[353] But, as the principles of Hoadley and his advocates +appeared, in the main, little else than those of protestantism and +toleration, the sentence of the laity, in the temper that was then +gaining ground as to ecclesiastical subjects, was soon pronounced in +their favour; and the high-church party discredited themselves by an +opposition to what now pass for the incontrovertible truisms of +religious liberty. In the ferment of that age, it was expedient for +the state to scatter a little dust over the angry insects; the +convocation was accordingly prorogued in 1717, and has never again sat +for any business.[354] Those who are imbued with high notions of +sacerdotal power have sometimes deplored this extinction of the +Anglican great council; and though its necessity, as I have already +observed, cannot possibly be defended as an ancient part of the +constitution, there are not wanting specious arguments for the +expediency of such a synod. It might be urged that the church, +considered only as an integral member of the commonwealth, and the +greatest corporation within it, might justly claim that right of +managing its own affairs which belongs to every other association; +that the argument from abuse is not sufficient, and is rejected with +indignation when applied, as historically it might be, to +representative governments and to civil liberty; that in the present +state of things, no reformation even of secondary importance can be +effected without difficulty, nor any looked for in greater matters, +both from the indifference of the legislature, and the reluctance of +the clergy to admit its interposition. + +It is answered to these suggestions, that we must take experience when +we possess it, rather than analogy, for our guide; that ecclesiastical +assemblies have in all ages and countries been mischievous, where they +have been powerful, which that of our wealthy and numerous clergy must +always be; that, notwithstanding, if the convocation could be brought +under the management of the state (which by the nature of its +component parts might seem not unlikely), it must lead to the +promotion of servile men, and the exclusion of merit still more than +at present; that the severe remark of Clarendon, who observes that of +all mankind none form so bad an estimate of human affairs as +churchmen, is abundantly confirmed by experience; that the +representation of the church in the House of Lords is sufficient for +the protection of its interests; that the clergy have an influence +which no other corporation enjoys over the bulk of the nation, and are +apt to abuse it for the purposes of undue ascendancy, unjust +restraint, or factious ambition; that the hope of any real good in +reformation of the Church by its own assemblies to whatever sort of +reform we may look, is utterly chimerical; finally, that as the laws +now stand, which few would incline to alter, the ratification of +parliament must be indispensable for any material change. It seems to +admit of no doubt that these reasonings ought much to outweigh those +on the opposite side. + +_Infringements of the toleration by statutes under Anne._--In the last +four years of the queen's reign, some inroads had been made on the +toleration granted to dissenters, whom the high-church party held in +abhorrence. They had for a long time inveighed against what was called +occasional conformity, or the compliance of dissenters with the +provisions of the test act in order merely to qualify themselves for +holding office, or entering into corporations. Nothing could, in the +eyes of sensible men, be more advantageous to the church, if a +re-union of those who had separated from it were advantageous, than +this practice. Admitting even that the motive was self-interested, +has an established government, in church or state, any better ally +than the self-interestedness of mankind? Was it not what a +presbyterian or independent minister would denounce as a base and +worldly sacrifice? and if so, was not the interest of the Anglican +clergy exactly in an inverse proportion to this? Any one competent to +judge of human affairs would predict, what has turned out to be the +case, that when the barrier was once taken down for the sake of +convenience, it would not be raised again for conscience; that the +most latitudinarian theory, the most lukewarm dispositions in +religion, must be prodigiously favourable to the reigning sect; and +that the dissenting clergy, though they might retain, or even extend, +their influence over the multitude, would gradually lose it with those +classes who could be affected by the test. But, even if the tory +faction had been cool-headed enough for such reflections, it has, +unfortunately, been sometimes less the aim of the clergy to reconcile +those who differ from them than to keep them in a state of dishonour +and depression. Hence, in the first parliament of Anne, a bill to +prevent occasional conformity more than once passed the Commons; and, +on its being rejected by the Lords, a great majority of William's +bishops voting against the measure, it was sent up again in a very +reprehensible manner, tacked, as it was called, to a grant of money; +so that, according to the pretension of the Commons in respect to such +bills, the upper house must either refuse the supply, or consent to +what they disapproved.[355] This however having miscarried, and the +next parliament being of better principles, nothing farther was done +till 1711, when Lord Nottingham, a vehement high-churchman, having +united with the whigs against the treaty of peace, they were +injudicious enough to gratify him by concurring in a bill to prevent +occasional conformity.[356] This was followed up by the ministry in a +more decisive attack on the toleration, an act for preventing the +growth of schism, which extended and confirmed one of Charles II., +enforcing on all schoolmasters, and even on all teachers in private +families, a declaration of conformity to the established church, to be +made before the bishop, from whom a licence for exercising that +profession was also to be obtained.[357] It is impossible to doubt for +an instant, that if the queen's life had preserved the tory +government for a few years, every vestige of the toleration would have +been effaced. + +These statutes, records of their adversaries' power, the whigs, now +lords of the ascendant, determined to abrogate. The dissenters were +unanimously zealous for the house of Hanover and for the ministry; the +church of very doubtful loyalty to the Crown, and still less affection +to the whig name. In the session of 1719, accordingly, the act against +occasional conformity, and that restraining education, were +repealed.[358] It had been the intention to have also repealed the +test act; but the disunion then prevailing among the whigs had caused +so formidable an opposition even to the former measures, that it was +found necessary to abandon that project. Walpole, more cautious and +moderate than the ministry of 1719, perceived the advantage of +reconciling the church as far as possible to the royal family and to +his own government; and it seems to have been an article in the tacit +compromise with the bishops, who were not backward in exerting their +influence for the Crown, that he should make no attempt to abrogate +the laws which gave a monopoly of power to the Anglican communion. We +may presume also that the prelates undertook not to obstruct the acts +of indemnity passed from time to time in favour of those who had not +duly qualified themselves for the offices they held; and which, after +some time becoming regular, have in effect thrown open the gates to +protestant dissenters, though still subject to be closed by either +house of parliament, if any jealousies should induce them to refuse +their assent to this annual enactment.[359] + +_Principles of toleration fully established._--Meanwhile the +principles of religious liberty, in all senses of the word, gained +strength by this eager controversy, naturally pleasing as they are to +the proud independence of the English character, and congenial to +those of civil freedom, which both parties, tory as much as whig, had +now learned sedulously to maintain. The non-juring and high-church +factions among the clergy produced few eminent men; and lost credit, +not more by the folly of their notions than by their general want of +scholarship and disregard of their duties. The university of Oxford +was tainted to the core with jacobite prejudices; but it must be added +that it never stood so low in respectability as a place of +education.[360] The government, on the other hand, was studious to +promote distinguished men; and doubtless the hierarchy in the first +sixty years of the eighteenth century might very advantageously be +compared, in point of conspicuous ability, with that of any equal +period that ensued. The maxims of persecution were silently abandoned, +as well as its practice; Warburton, and others of less name, taught +those of toleration with as much boldness as Hoadley, but without some +of his more invidious tenets; the more popular writers took a liberal +tone; the names of Locke and Montesquieu acquired immense authority; +the courts of justice discountenanced any endeavour to revive +oppressive statutes; and, not long after the end of George the +Second's reign, it was adjudged in the House of Lords, upon the +broadest principles of toleration laid down by Lord Mansfield, that +nonconformity with the established church is recognised by the law, +and not an offence at which it connives. + +_Banishment of Atterbury._--Atterbury, Bishop of Rochester, the most +distinguished of the party denominated high-church, became the victim +of his restless character and implacable disaffection to the house of +Hanover. The pretended king, for some years after his competitor's +accession, had fair hopes from different powers of Europe--France, +Sweden, Russia, Spain, Austria--(each of whom, in its turn, was ready +to make use of this instrument), and from the powerful faction who +panted for his restoration. This was unquestionably very numerous; +though we have not as yet the means of fixing with certainty on more +than comparatively a small number of names. But a conspiracy for an +invasion from Spain and a simultaneous rising was detected in 1722, +which implicated three or four peers, and among them the Bishop of +Rochester.[361] The evidence, however, though tolerably convincing, +being insufficient for a verdict at law, it was thought expedient to +pass a bill of pains and penalties against this prelate, as well as +others against two of his accomplices. The proof, besides many +corroborating circumstances, consisted in three letters relative to +the conspiracy, supposed to be written by his secretary Kelly, and +appearing to be dictated by the bishop. He was deprived of his see, +and banished the kingdom for life.[362] This met with strong +opposition, not limited to the enemies of the royal family, and is +open to the same objection as the attainder of Sir John Fenwick; the +danger of setting aside those precious securities against a wicked +government which the law of treason has furnished. As a vigorous +assertion of the state's authority over the church we may commend the +policy of Atterbury's deprivation; but perhaps this was ill purchased +by a mischievous precedent. It is however the last act of a violent +nature in any important matter, which can be charged against the +English legislature. + +_Decline of the Jacobites._--No extensive conspiracy of the jacobite +faction seems ever to have been in agitation after the fall of +Atterbury. The Pretender had his emissaries perpetually alert; and it +is understood that an enormous mass of letters from his English +friends is in existence;[363] but very few had the courage, or rather +folly, to plunge into so desperate a course as rebellion. Walpole's +prudent and vigilant administration, without transgressing the +boundaries of that free constitution for which alone the house of +Brunswick had been preferred, kept in check the disaffected. He wisely +sought the friendship of Cardinal Fleury, aware that no other power in +Europe than France could effectually assist the banished family. After +his own fall and the death of Fleury, new combinations of foreign +policy arose; his successors returned to the Austrian connection; a +war with France broke out; the grandson of James II. became master, +for a moment, of Scotland, and even advanced to the centre of this +peaceful and unprotected kingdom. But this was hardly more ignominious +to the government than to the jacobites themselves; none of them +joined the standard of their pretended sovereign; and the rebellion of +1745 was conclusive, by its own temporary success, against the +possibility of his restoration.[364] From this time the government, +even when in search of pretexts for alarm, could hardly affect to +dread a name grown so contemptible as that of the Stuart party. It +survived however for the rest of the reign of George II. in those +magnanimous compotations, which had always been the best evidence of +its courage and fidelity. + +_Prejudices against the reigning family._--Though the jacobite party +had set before its eyes an object most dangerous to the public +tranquillity, and which, could it have been attained, would have +brought on again the contention of the seventeenth century; though, in +taking oaths to a government against which they were in conspiracy, +they showed a systematic disregard of obligation, and were as little +mindful of allegiance, in the years 1715 and 1745, to the prince they +owned in their hearts, as they had been to him whom they had professed +to acknowledge, it ought to be admitted that they were rendered more +numerous and formidable than was necessary by the faults of the +reigning kings or of their ministers. They were not actuated for the +most part (perhaps with very few exceptions) by the slavish principles +of indefeasible right, much less by those of despotic power. They had +been so long in opposition to the court, they had so often spoken the +language of liberty, that we may justly believe them to have been its +friends. It was the policy of Walpole to keep alive the strongest +prejudice in the mind of George II., obstinately retentive of +prejudice, as such narrow and passionate minds always are, against the +whole body of the tories. They were ill received at court, and +generally excluded, not only from those departments of office which +the dominant party have a right to keep in their power, but from the +commission of the peace, and every other subordinate trust.[365] This +illiberal and selfish course retained many, no doubt, in the +Pretender's camp, who must have perceived both the improbability of +his restoration, and the difficulty of reconciling it with the safety +of our constitution. He was indeed, as well as his son, far less +worthy of respect than the contemporary Brunswick kings: without +absolutely wanting capacity or courage, he gave the most undeniable +evidence of his legitimacy by constantly resisting the counsels of +wise men, and yielding to those of priests; while his son, the +fugitive of Culloden, despised and deserted by his own party, insulted +by the court of France, lost with the advance of years even the +respect and compassion which wait on unceasing misfortune, the last +sad inheritance of the house of Stuart.[366] But they were little +known in England, and from unknown princes men are prone to hope +much: if some could anticipate a redress of every evil from Frederic +Prince of Wales, whom they might discover to be destitute of +respectable qualities, it cannot be wondered at that others might draw +equally flattering prognostics from the accession of Charles Edward. +It is almost certain that, if either the claimant or his son had +embraced the protestant religion, and had also manifested any superior +strength of mind, the German prejudices of the reigning family would +have cost them the throne, as they did the people's affections. +Jacobitism, in the great majority, was one modification of the spirit +of liberty burning strongly in the nation at this period. It gave a +rallying point to that indefinite discontent, which is excited by an +ill opinion of rulers, and to that disinterested, though ignorant +patriotism which boils up in youthful minds. The government in +possession was hated, not as usurped, but as corrupt; the banished +line was demanded, not so much because it was legitimate, but because +it was the fancied means of redressing grievances and regenerating the +constitution. Such notions were doubtless absurd; but it is undeniable +that they were common, and had been so almost from the revolution. I +speak only, it will be observed, of the English jacobites; in Scotland +the sentiments of loyalty and national pride had a vital energy, and +the Highland chieftains gave their blood, as freely as their southern +allies did their wine, for the cause of their ancient kings. + +No one can have looked in the most cursory manner at the political +writings of these two reigns, or at the debates of parliament, without +being struck by the continual predictions that our liberties were on +the point of extinguishment, or at least by apprehensions of their +being endangered. It might seem that little or nothing had been gained +by the revolution, and by the substitution of an elective dynasty. +This doubtless it was the interest of the Stuart party to maintain or +insinuate; and, in the conflict of factions, those who, with far +opposite views, had separated from the court, seemed to lend them aid. +The declamatory exaggerations of that able and ambitious body of men +who co-operated against the ministry of Sir Robert Walpole have long +been rejected; and perhaps in the usual reflux of popular opinion, his +domestic administration (for in foreign policy his views, so far as he +was permitted to act upon them, appear to have been uniformly +judicious) has obtained of late rather an undue degree of favour. I +have already observed that, for the sake of his own ascendancy in the +cabinet, he kept up unnecessarily the distinctions of the whig and +tory parties, and thus impaired the stability of the royal house, +which it was his chief care to support. And, though his government was +so far from anything oppressive or arbitrary that, considered either +relatively to any former times, or to the extensive disaffection known +to subsist, it was uncommonly moderate; yet, feeling or feigning alarm +at the jacobite intrigues on the one hand, at the democratic tone of +public sentiment and of popular writings on the other, he laboured to +preserve a more narrow and oligarchical spirit than was congenial to +so great and brave a people, and trusted not enough, as indeed is the +general fault of ministers, to the sway of good sense and honesty over +disinterested minds. But, as he never had a complete influence over +his master, and knew that those who opposed him had little else in +view than to seize the reins of power and manage them worse, his +deviations from the straight course are more pardonable. + +The clamorous invectives of this opposition, combined with the +subsequent dereliction of avowed principles by many among them when in +power, contributed more than anything else in our history to cast +obloquy and suspicion, or even ridicule, on the name and occupation of +patriots. Men of sordid and venal characters always rejoice to +generalise so convenient a maxim as the non-existence of public +virtue. It may not however be improbable, that many of those who took +a part in this long contention, were less insincere than it has been +the fashion to believe, though led too far at the moment by their own +passions, as well as by the necessity of colouring highly a picture +meant for the multitude, and reduced afterwards to the usual +compromises and concessions, without which power in this country is +ever unattainable. But waiving a topic too generally historical for +the present chapter, it will be worth while to consider what sort of +ground there might be for some prevalent subjects of declamation; and +whether the power of government had not, in several respects, been a +good deal enhanced since the beginning of the century. By the power of +government I mean not so much the personal authority of the sovereign +as that of his ministers, acting perhaps without his directions; +which, since the reign of William, is to be distinguished, if we look +at it analytically, from the monarchy itself. + +I. The most striking acquisition of power by the Crown in the new +model of government, if I may use such an expression, is the +permanence of a regular military force. The reader cannot need to be +reminded that no army existed before the civil war, that the guards in +the reign of Charles II. were about 5000 men, that in the +breathing-time between the peace of Ryswick and the war of the Spanish +succession, the Commons could not be brought to keep up more than 7000 +troops. Nothing could be more repugnant to the national prejudices +than a standing army. The tories, partly from regard to the ancient +usage of the constitution, partly, no doubt, from a factious or +disaffected spirit, were unanimous in protesting against it. The most +disinterested and zealous lovers of liberty came with great suspicion +and reluctance into what seemed so perilous an innovation. But the +court, after the accession of the house of Hanover, had many reasons +for insisting upon so great an augmentation of its power and security. +It is remarkable to perceive by what stealthy advances this came on. +Two long wars had rendered the army a profession for men in the higher +and middling classes, and familiarised the nation to their dress and +rank; it had achieved great honour for itself and the English name; +and in the nature of mankind the patriotism of glory is too often an +overmatch for that of liberty. The two kings were fond of warlike +policy, the second of war itself; their schemes, and those of their +ministers, demanded an imposing attitude in negotiation, which an +army, it was thought, could best give; the cabinet was for many years +entangled in alliances, shifting sometimes rapidly, but in each +combination liable to produce the interruption of peace. In the new +system which rendered the houses of parliament partakers in the +executive administration, they were drawn themselves into the +approbation of every successive measure, either on the propositions of +ministers, or as often happens more indirectly, but hardly less +effectually, by passing a negative on those of their opponents. + +_Permanent military force._--The number of troops for which a vote was +annually demanded, after some variations, in the first years of George +I., was, during the whole administration of Sir Robert Walpole, except +when the state of Europe excited some apprehension of disturbance, +rather more than 17,000 men, independent of those on the Irish +establishment, but including the garrisons of Minorca and Gibraltar. +And this continued with little alteration to be our standing army in +time of peace during the eighteenth century. + +This army was always understood to be kept on foot, as it is still +expressed in the preamble of every mutiny bill, for better preserving +the balance of power in Europe. The Commons would not for an instant +admit that it was necessary as a permanent force, in order to maintain +the government at home. There can be no question however that the +court saw its advantage in this light; and I am not perfectly sure +that some of the multiplied negotiations on the continent in that age +were not intended as a pretext for keeping up the army, or at least as +a means of exciting alarm for the security of the established +government. In fact, there would have been rebellions in the time of +George I., not only in Scotland, which perhaps could not otherwise +have been preserved, but in many parts of the kingdom, had the +parliament adhered with too pertinacious bigotry to their ancient +maxims. Yet these had such influence that it was long before the army +was admitted by every one to be perpetual; and I do not know that it +has ever been recognised as such in our statutes. Mr. Pulteney, so +late as 1732, a man neither disaffected nor democratical, and whose +views extended no farther than a change of hands, declared that he +"always had been, and always would be, against a standing army of any +kind; it was to him a terrible thing, whether under the denomination +of parliamentary or any other. A standing army is still a standing +army, whatever name it be called by; they are a body of men distinct +from the body of the people; they are governed by different laws; +blind obedience and an entire submission to the orders of their +commanding officer is their only principle. The nations around us are +already enslaved, and have been enslaved by those very means; by means +of their standing armies they have every one lost their liberties; it +is indeed impossible that the liberties of the people can be preserved +in any country where a numerous standing army is kept up."[367] + +This wholesome jealousy, though it did not prevent what was indeed for +many reasons not to be dispensed with, the establishment of a regular +force, kept it within bounds which possibly the administration, if +left to itself, would have gladly overleaped. A clause in the mutiny +bill, first inserted in 1718, enabling courts-martial to punish mutiny +and desertion with death, which had hitherto been only cognisable as +capital offences by the civil magistrate, was carried by a very small +majority in both houses.[368] An act was passed in 1735, directing +that no troops should come within two miles of any place, except the +capital or a garrisoned town, during an election;[369] and on some +occasions, both the Commons and the courts of justice showed that they +had not forgotten the maxims of their ancestors as to the supremacy of +the civil power.[370] A more important measure was projected by men of +independent principles, at once to secure the kingdom against attack, +invaded as it had been by rebels in 1745, and thrown into the most +ignominious panic on the rumours of a French armament in 1756, to take +away the pretext for a large standing force, and perhaps to furnish a +guarantee against any evil purposes to which in future times it might +be subservient, by the establishment of a national militia, under the +sole authority, indeed of the Crown, but commanded by gentlemen of +sufficient estates, and not liable, except in war, to be marched out +of its proper county. This favourite plan, with some reluctance on the +part of the government, was adopted in 1757.[371] But though, during +the long periods of hostilities which have unfortunately ensued, this +embodied force had doubtless placed the kingdom in a more respectable +state of security, it has not much contributed to diminish the number +of our regular forces; and, from some defects in its constitution, +arising out of too great attention to our ancient local divisions, and +of too indiscriminate a dispensation with personal service, which has +filled the ranks with the refuse of the community, the militia has +grown unpopular and burthensome, rather considered of late by the +government as a means of recruiting the army than as worthy of +preservation in itself, and accordingly thrown aside in time of peace; +so that the person who acquired great popularity as the author of this +institution, lived to see it worn out and gone to decay, and the +principles, above all, upon which he had brought it forward, just +enough remembered to be turned into ridicule. Yet the success of that +magnificent organisation which, in our own time, has been established +in France, is sufficient to evince the possibility of a national +militia; and we know with what spirit such a force was kept up for +some years in this country, under the name of volunteers and yeomanry, +on its only real basis, that of property, and in such local +distribution as convenience pointed out. + +Nothing could be more idle, at any time since the revolution, than to +suppose that the regular army would pull the speaker out of his chair, +or in any manner be employed to confirm a despotic power in the Crown. +Such power, I think, could never have been the waking dream of either +king or minister. But as the slightest inroads upon private rights and +liberties are to be guarded against in any nation that deserves to be +called free, we should always keep in mind not only that the military +power is subordinate to the civil, but, as this subordination must +cease where the former is frequently employed, that it should never be +called upon in aid of the peace without sufficient cause. Nothing +would more break down this notion of the law's supremacy than the +perpetual interference of those who are really governed by another +law; for the doctrine of some judges, that the soldier, being still a +citizen, acts only in preservation of the public peace, as another +citizen is bound to do, must be felt as a sophism, even by those who +cannot find an answer to it. And, even in slight circumstances, it is +not conformable to the principles of our government to make that vain +display of military authority which disgusts us so much in some +continental kingdoms. But, not to dwell on this, it is more to our +immediate purpose that the executive power has acquired such a +coadjutor in the regular army that it can, in no probable emergency, +have much to apprehend from popular sedition. The increased facilities +of transport, and several improvements in military art and science, +which will occur to the reader, have in later times greatly enhanced +this advantage. + +II. It must be apparent to every one that since the restoration, and +especially since the revolution, an immense power has been thrown into +the scale of both houses of parliament, though practically in more +frequent exercise by the lower, in consequence of their annual session +during several months, and of their almost unlimited rights of +investigation, discussion, and advice. But, if the Crown should by any +means become secure of an ascendancy in this assembly, it is evident +that, although the prerogative, technically speaking, might be +diminished, the power might be the same, or even possibly more +efficacious; and that this result must be proportioned to the degree +and security of such an ascendancy. A parliament absolutely, and in +all conceivable circumstances, under the control of the sovereign, +whether through intimidation or corrupt subservience, could not, +without absurdity, be deemed a co-ordinate power, or, indeed, in any +sense, a restraint upon his will. This is however an extreme +supposition, which no man, unless both grossly factious and ignorant, +will ever pretend to have been realised. But, as it would equally +contradict notorious truth to assert that every vote has been +disinterested and independent, the degree of influence which ought to +be permitted, or which has at any time existed, becomes one of the +most important subjects in our constitutional policy. + +I have mentioned in the last chapter both the provisions inserted in +the act of settlement, with the design of excluding altogether the +possessors of public office from the House of Commons, and the +modifications of them by several acts of the queen. These were deemed +by the country party so inadequate to restrain the dependents of power +from overspreading the benches of the Commons that perpetual attempts +were made to carry the exclusive principle to a far greater length. In +the two next reigns, if we can trust to the uncontradicted language of +debate, or even to the descriptions of individuals in the lists of +each parliament, we must conclude that a very undue proportion of +dependents on the favour of government were made its censors and +counsellors. There was still, however, so much left of an independent +spirit, that bills for restricting the number of placemen, or +excluding pensioners, met always with countenance; they were sometimes +rejected by very slight majorities; and, after a time, Sir Robert +Walpole found it expedient to reserve his opposition for the surer +field of the other house.[372] After his fall, it was imputed with +some justice to his successors, that they shrunk in power from the +bold reformation which they had so frequently endeavoured; the king +was indignantly averse to all retrenchment of his power, and they +wanted probably both the inclination and the influence to cut off all +corruption. Yet we owe to this ministry the place bill of 1743, which, +derided as it was at the time, seems to have had a considerable +effect; excluding a great number of inferior officers from the House +of Commons, which has never since contained so revolting a list of +court-deputies as it did in the age of Walpole.[373] + +_Secret corruption._--But while this acknowledged influence of +lucrative office might be presumed to operate on many staunch +adherents of the actual administration, there was always a strong +suspicion, or rather a general certainty, of absolute corruption. The +proofs in single instances could never perhaps be established; which, +of course, is not surprising. But no one seriously called in question +the reality of a systematic distribution of money by the Crown to the +representatives of the people; nor did the corrupters themselves, in +whom the crime seems always to be deemed less heinous, disguise it in +private.[374] It is true that the appropriation of supplies, and the +established course of the exchequer, render the greatest part of the +public revenue secure from misapplication; but, under the head of +secret service money, a very large sum was annually expended without +account, and some other parts of the civil list were equally free from +all public examination.[375] The committee of secrecy appointed after +the resignation of Sir Robert Walpole endeavoured to elicit some +distinct evidence of this misapplication; but the obscurity natural to +such transactions, and the guilty collusion of subaltern accomplices, +who shrouded themselves in the protection of the law, defeated every +hope of punishment, or even personal disgrace.[376] This practice of +direct bribery continued, beyond doubt, long afterwards, and is +generally supposed to have ceased about the termination of the +American war. + +There is hardly any doctrine with respect to our government more in +fashion than that a considerable influence of the Crown (meaning of +course a corrupt influence) in both houses of parliament, and +especially in the Commons, has been rendered indispensable by the vast +enhancement of their own power over the public administration. It is +doubtless most expedient that many servants of the Crown should be +also servants of the people; and no man who values the constitution +would separate the functions of ministers of state from those of +legislators. The glory that waits on wisdom and eloquence in the +senate should always be the great prize of an English statesman, and +his high road to the sovereign's favour. But the maxim that private +vices are public benefits is as sophistical as it is disgusting; and +it is self-evident, both that the expectation of a clandestine +recompense, or what in effect is the same thing, of a lucrative +office, cannot be the motive of an upright man in his vote, and that +if an entire parliament should be composed of such venal spirits, +there would be an end of all control upon the Crown. There is no real +cause to apprehend that a virtuous and enlightened government would +find difficulty in resting upon the reputation justly due to it; +especially when we throw into the scale that species of influence +which must ever subsist, the sentiment of respect and loyalty to a +sovereign, of friendship and gratitude to a minister, of habitual +confidence in those intrusted with power, of averseness to confusion +and untried change, which have in fact more extensive operation than +any sordid motives, and which must almost always render them +unnecessary. + +III. _Commitments for breach of privilege._--The co-operation of both +houses of parliament with the executive government enabled the latter +to convert to its own purpose what had often in former times been +employed against it, the power of inflicting punishment for breach of +privilege. But as the subject of parliamentary privilege is of no +slight importance, it will be convenient on this occasion to bring the +whole before the reader in as concise a summary as possible, +distinguishing the power, as it relates to offences committed by +members of either house, or against them singly, or the houses of +parliament collectively, or against the government and the public. + +1. It has been the constant practice of the House of Commons to +repress disorderly or indecent behaviour by a censure delivered +through the speaker. Instances of this are even noticed in the +journals under Edward VI. and Mary; and it is in fact essential to the +regular proceedings of any assembly. In the former reign they also +committed one of their members to the Tower. But in the famous case of +Arthur Hall in 1581, they established the first precedent of punishing +one of their own body for a printed libel derogatory to them as a part +of the legislature; and they inflicted the threefold penalty of +imprisonment, fine, and expulsion.[377] From this time forth it was +understood to be the law and usage of parliament, that the Commons +might commit to prison any one of their members for misconduct in the +house, or relating to it. The right of imposing a fine was very rarely +asserted after the instance of Hall. But that of expulsion, no earlier +precedent whereof has been recorded, became as indubitable as frequent +and unquestioned usage could render it. It was carried to a great +excess by the long parliament, and again in the year 1680. These, +however, were times of extreme violence; and the prevailing faction +had an apology in the designs of the court, which required an energy +beyond the law to counteract them. The offences, too, which the whigs +thus punished in 1680, were in their effect against the power and even +existence of parliament. The privilege was far more unwarrantably +exerted by the opposite party in 1714, against Sir Richard Steele, +expelled the house for writing the "Crisis," a pamphlet reflecting on +the ministry. This was, perhaps, the first instance wherein the House +of Commons so identified itself with the executive administration, +independently of the sovereign's person, as to consider itself +libelled by those who impugned its measures.[378] + +In a few instances an attempt was made to carry this farther, by +declaring the party incapable of sitting in parliament. It is hardly +necessary to remark that upon this rested the celebrated question of +the Middlesex election in 1769. If a few precedents, and those not +before the year 1680, were to determine all controversies of +constitutional law, it is plain enough from the journals that the +house have assumed the power of incapacitation. But as such an +authority is highly dangerous and unnecessary for any good purpose, +and as, according to all legal rules, so extraordinary a power could +not be supported except by a sort of prescription which cannot be +shown, the final resolution of the House of Commons, which condemned +the votes passed in times of great excitement, appears far more +consonant to just principles. + +2. The power of each house of parliament over those who do not belong +to it is of a more extensive consideration, and has lain open, in some +respects, to more doubt than that over its own members. It has been +exercised, in the first place, very frequently, and from an early +period, in order to protect the members personally, and in their +properties, from anything which has been construed to interfere with +the discharge of their functions. Every obstruction in these duties, +by assaulting, challenging, insulting any single representative of the +Commons, has from the middle of the sixteenth century downwards, that +is, from the beginning of their regular journals, been justly deemed a +breach of privilege, and an offence against the whole body. It has +been punished generally by commitment, either to the custody of the +house's officer, the serjeant-at-arms, or to the king's prison. This +summary proceeding is usually defended by a technical analogy to what +are called attachments for contempt, by which every court of record is +entitled to punish by imprisonment, if not also by fine, any +obstruction to its acts or contumacious resistance of them. But it +tended also to raise the dignity of parliament in the eyes of the +people, at times when the government, and even the courts of justice, +were not greatly inclined to regard it; and has been also a necessary +safeguard against the insolence of power. The majority are bound to +respect, and indeed have respected, the rights of every member, +however obnoxious to them, on all questions of privilege. Even in the +case most likely to occur in the present age, that of libels, which +by no unreasonable stretch come under the head of obstructions, it +would be unjust that a patriotic legislator, exposed to calumny for +his zeal in the public cause, should be necessarily driven to a +troublesome and uncertain process at law, when the offence so +manifestly affects the real interests of parliament and the nation. +The application of this principle must of course require a discreet +temper, which was not perhaps always observed in former times, +especially in the reign of William III. Instances at least of +punishment for breach of privilege by personal reflections are never +so common as in the journals of that turbulent period. + +The most usual mode, however, of incurring the animadversion of the +house was by molestations in regard to property. It was the most +ancient privilege of the Commons to be free from all legal process, +during the term of the session and for forty days before and after, +except on charges of treason, felony, or breach of the peace. I have +elsewhere mentioned the great case of Ferrers, under Henry VIII., +wherein the house first, as far as we know, exerted the power of +committing to prison those who had been concerned in arresting one of +its members; and have shown that, after some little intermission, this +became their recognised and customary right. Numberless instances +occur of its exercise.[379] It was not only a breach of privilege to +serve any sort of process upon them, but to put them under the +necessity of seeking redress at law for any civil injury. Thus +abundant cases are found in the journals, where persons have been +committed to prison for entering on the estates of members, carrying +away timber, lopping trees, digging coal, fishing in their waters. +Their servants, and even their tenants, if the trespass were such as +to affect the landlord's property, had the same protection.[380] The +grievance of so unparalleled an immunity must have been notorious, +since it not only suspended at least the redress of creditors, but +enabled rapacious men to establish in some measure unjust claims in +respect of property; the alleged trespasses being generally founded on +some disputed right. An act however was passed, rendering the members +of both houses liable to civil suits during the prorogation of +parliament.[381] But they long continued to avenge the private +injuries, real or pretended, of their members. On a complaint of +breach of privilege by trespassing on a fishery (Jan. 25, 1768), they +heard evidence on both sides, and determined that no breach of +privilege had been committed; thus indirectly taking on them the +decision of a freehold right. A few days after they came to a +resolution, "that in case of any complaint of a breach of privilege, +hereafter to be made by any member of this house, if the house shall +adjudge there is no ground for such complaint, the house will order +satisfaction to the person complained of for his costs and expenses +incurred by reason of such complaint."[382] But little opportunity was +given to try the effect of this resolution, an act having passed in +two years afterwards, which has altogether taken away the exemption +from legal process, except as to the immunity from personal arrest, +which still continues to be the privilege of both houses of +parliament.[383] + +3. A more important class of offences against privilege is of such as +affect either house of parliament collectively. In the reign of +Elizabeth we have an instance of one committed for disrespectful words +against the Commons. A few others, either for words spoken or +published libels, occur in the reign of Charles I. even before the +long parliament; but those of 1641 can have little weight as +precedents, and we may say nearly the same of the unjustifiable +proceedings in 1680. Even since the revolution we find too many proofs +of encroaching pride or intemperate passion, to which a numerous +assembly is always prone, and which the prevalent doctrine of the +house's absolute power in matters of privilege has not contributed +much to restrain. The most remarkable may be briefly noticed. + +The Commons of 1701, wherein a tory spirit was strongly predominant, +by what were deemed its factious delays in voting supplies, and in +seconding the measures of the king for the security of Europe, had +exasperated all those who saw the nation's safety in vigorous +preparations for war, and led at last to the most angry resolution of +the Lords, which one house of parliament in a matter not affecting its +privileges has ever recorded against the other.[384] The grand jury of +Kent, and other freeholders of the county, presented accordingly a +petition on the 8th of May 1701, imploring them to turn their loyal +addresses into bills of supply (the only phrase in the whole petition +that could be construed into disrespect), and to enable his majesty to +assist his allies before it should be too late. The tory faction was +wrought to fury by this honest remonstrance. They voted that the +petition was scandalous, insolent, and seditious, tending to destroy +the constitution of parliament, and to subvert the established +government of this realm; and ordered that Mr. Colepepper, who had +been most forward in presenting the petition, and all others concerned +in it, should be taken into custody of the serjeant.[385] Though no +attempt was made on this occasion to call the authority of the house +into question by habeas corpus or other legal remedy, it was discussed +in pamphlets and in general conversation, with little advantage to a +power so arbitrary, and so evidently abused in the immediate +instance.[386] + +A very few years after this high exercise of authority, it was called +forth in another case, still more remarkable and even less +warrantable. The House of Commons had an undoubted right of +determining all disputed returns to the writ of election, and +consequently of judging upon the right of every vote. But, as the +house could not pretend that it had given this right, or that it was +not, like any other franchise, vested in the possessor by a legal +title, no pretext of reason or analogy could be set up for denying +that it might also come, in an indirect manner at least, before a +court of justice, and be judged by the common principles of law. One +Ashby, however, a burgess of Aylesbury, having sued the returning +officer for refusing his vote; and three judges of the king's bench, +against the opinion of Chief-Justice Holt, having determined for +different reasons that it did not lie, a writ of error was brought in +the House of Lords, when the judgment was reversed. The House of +Commons took this up indignantly, and passed various resolutions, +asserting their exclusive right to take cognisance of all matters +relating to the election of their members. The Lords repelled these by +contrary resolutions; That by the known laws of this kingdom, every +person having a right to give his vote, and being wilfully denied by +the officer who ought to receive it, may maintain an action against +such officer to recover damage for the injury; That the contrary +assertion is destructive of the property of the subject, and tends to +encourage corruption and partiality in returning officers; That the +declaring persons guilty of breach of privilege for prosecuting such +actions, or for soliciting and pleading in them, is a manifest +assuming a power to control the law, and hinder the course of justice, +and subject the property of Englishmen to the arbitrary votes of the +House of Commons. They ordered a copy of these resolutions to be sent +to all the sheriffs, and to be communicated by them to all the +boroughs in their respective counties. + +A prorogation soon afterwards followed, but served only to give +breathing time to the exasperated parties; for it must be observed, +that though a sense of dignity and privilege no doubt swelled the +majorities in each house, the question was very much involved in the +general whig and tory course of politics. But Ashby, during the +recess, having proceeded to execution on his judgment, and some other +actions having been brought against the returning officer of +Aylesbury, the Commons again took it up, and committed the parties to +Newgate. They moved the court of king's bench for a habeas corpus; +upon the return to which, the judges, except Holt, thought themselves +not warranted to set them at liberty against the commitment of the +house.[387] It was threatened to bring this by writ of error before +the Lords; and, in the disposition of that assembly, it seems probable +that they would have inflicted a severe wound on the privileges of the +lower house, which must in all probability have turned out a sort of +suicide upon their own. But the Commons interposed by resolving to +commit to prison the counsel and agents concerned in prosecuting the +habeas corpus, and by addressing the queen not to grant a writ of +error. The queen properly answered, that as this matter, relating to +the course of judicial proceedings, was of the highest consequence, +she thought it necessary to weigh very carefully what she should do. +The Lords came to some important resolutions: That neither house of +parliament hath any power by any vote or declaration to create to +themselves any new privilege that is not warranted by the known laws +and customs of parliament; That the House of Commons, in committing to +Newgate certain persons for prosecuting an action at law, upon +pretence that their so doing was contrary to a declaration, a contempt +of the jurisdiction, and a breach of the privileges of that house, +have assumed to themselves alone a legislative power, by pretending to +attribute the force of law to their declaration, have claimed a +jurisdiction not warranted by the constitution, and have assumed a new +privilege, to which they can show no title by the law and custom of +parliament; and have thereby, as far as in them lies, subjected the +rights of Englishmen, and the freedom of their persons, to the +arbitrary votes of the House of Commons; That every Englishman, who is +imprisoned by any authority whatsoever, has an undoubted right to a +writ of habeas corpus, in order to obtain his liberty by the due +course of law; That for the House of Commons to punish any person for +assisting a prisoner to procure such a writ is an attempt of dangerous +consequence, and a breach of the statutes provided for the liberty of +the subject; That a writ of error is not of grace but of right, and +ought not to be denied to the subject when duly applied for, though at +the request of either house of parliament. + +These vigorous resolutions produced a conference between the houses, +which was managed with more temper than might have been expected from +the tone taken on both sides. But, neither of them receding in the +slightest degree, the Lords addressed the queen, requesting her to +issue the writs of error demanded upon the refusal of the king's bench +to discharge the parties committed by the House of Commons. The queen +answered the same day, that she should have granted the writs of error +desired by them, but finding an absolute necessity of putting an +immediate end to the session, she was sensible there could have been +no further proceeding upon them. The meaning of this could only be, +that by a prorogation all commitments by order of the lower house of +parliament are determined, so that the parties could stand in no need +of a habeas corpus. But a great constitutional question was thus +wholly eluded.[388] + +We may reckon the proceedings against Mr. Alexander Murray, in 1751, +among the instances wherein the House of Commons has been hurried by +passion to an undue violence. This gentleman had been active in a +contested Westminster election, on an anti-ministerial and perhaps +jacobite interest. In the course of an inquiry before the house, +founded on a petition against the return, the high-bailiff named Mr. +Murray as having insulted him in the execution of his duty. The house +resolved to hear Murray by counsel in his defence, and the +high-bailiff also by counsel in support of the charge, and ordered the +former to give bail for his appearance from time to time. These, +especially the last, were innovations on the practice of parliament, +and were justly opposed by the more cool-headed men. After hearing +witnesses on both sides, it was resolved that Murray should be +committed to Newgate, and should receive this sentence upon his knees. +This command he steadily refused to obey, and thus drew on himself a +storm of wrath at such insolence and audacity. But the times were no +more, when the Commons could inflict whippings and pillories on the +refractory; and they were forced to content themselves with ordering +that no person should be admitted to him in prison, which, on account +of his ill-health, they soon afterwards relaxed. The public voice is +never favourable to such arbitrary exertions of mere power: at the +expiration of the session, Mr. Murray, thus grown from an intriguing +jacobite into a confessor of popular liberty, was attended home by a +sort of triumphal procession amidst the applause of the people. In the +next session he was again committed on the same charge; a proceeding +extremely violent and arbitrary.[389] + +It has been always deemed a most important and essential privilege of +the houses of parliament, that they may punish in this summary manner +by commitment all those who disobey their orders to attend as +witnesses, or for any purposes of their constitutional duties. No +inquiry could go forward before the house at large or its committees, +without this power to enforce obedience; especially when the +information is to be extracted from public officers against the secret +wishes of the court. It is equally necessary (or rather more so, since +evidence not being on oath in the lower house, there can be no +punishment in the course of law) that the contumacy or prevarication +of witnesses should incur a similar penalty. No man would seek to take +away this authority from parliament, unless he is either very ignorant +of what has occurred in other times and his own, or is a slave in the +fetters of some general theory. + +But far less can be advanced for several exertions of power on record +in the journals, which under the name of privilege must be reckoned by +impartial men irregularities and encroachments, capable only at some +periods of a kind of apology from the unsettled state of the +constitution. The Commons began, in the famous or infamous case of +Floyd, to arrogate a power of animadverting upon political offences, +which was then wrested from them by the upper house. But in the first +parliament of Charles I. they committed Montagu (afterwards the noted +semi-popish bishop) to the serjeant, on account of a published book, +containing doctrines they did not approve.[390] For this was evidently +the main point, though he was also charged with reviling two persons +who had petitioned the house, which bore a distant resemblance to a +contempt. In the long parliament, even from its commencement, every +boundary was swept away; it was sufficient to have displeased the +majority by act or word; but no precedents can be derived from a +crisis of force struggling against force. If we descend to the reign +of William III., it will be easy to discover instances of commitments, +laudable in their purpose, but of such doubtful legality and dangerous +consequence that no regard to the motive should induce us to justify +the precedent. Graham and Burton, the solicitors of the treasury in +all the worst state prosecutions under Charles and James, and Jenner, +a baron of the exchequer, were committed to the Tower by the council +immediately after the king's proclamation, with an intention of +proceeding criminally against them. Some months afterwards, the +suspension of the habeas corpus, which had taken place by bill, having +ceased, they moved the king's bench to admit them to bail; but the +House of Commons took this up, and, after a report of a committee as +to precedents, put them in custody of the serjeant at arms.[391] On +complaints of abuses in victualling the navy, the commissioners of +that department were sent for in the serjeant's custody, and only +released on bail ten days afterwards.[392] But, without minutely +considering the questionable instances of privilege that we may regret +to find, I will select one wherein the House of Commons appear to have +gone far beyond either the reasonable or customary limits of +privilege, and that with very little pretext of public necessity. In +the reign of George I., a newspaper called _Mist's Journal_ was +notorious as the organ of the jacobite faction. A passage full of the +most impudent longings for the Pretender's restoration having been +laid before the house, it was resolved, May 28, 1721, "that the said +paper is a false, malicious, scandalous, infamous, and traitorous +libel, tending to alienate the affections of his majesty's subjects, +and to excite the people to sedition and rebellion, with an intention +to subvert the present happy establishment, and to introduce popery +and arbitrary power." They went on after this resolution to commit the +printer Mist to Newgate, and to address the king that the authors and +publishers of the libel might be prosecuted.[393] It is to be observed +that no violation of privilege either was, or indeed could be alleged +as the ground of this commitment; which seems to imply that the house +conceived itself to be invested with a general power, at least in all +political misdemeanours. + +I have not observed any case more recent than this of Mist, wherein +any one has been committed on a charge which could not possibly be +interpreted on a contempt of the house, or a breach of its privilege. +It became however the practice, without previously addressing the +king, to direct a prosecution by the attorney-general for offences of +a public nature, which the Commons had learned in the course of any +inquiry, or which had been formally laid before them.[394] This seems +to have been introduced about the beginning of the reign of Anne, and +is undoubtedly a far more constitutional course than that of arbitrary +punishment by overstraining their privilege. In some instances, libels +have been publicly burned by the order of one or other house of +parliament. + +I have principally adverted to the powers exerted by the lower house +of parliament, in punishing those guilty of violating their +privileges. It will of course be understood that the Lords are at +least equal in authority. In some respects indeed they have gone +beyond. I do not mean that they would be supposed at present to have +cognisance of any offence whatever, upon which the Commons could not +animadvert. Notwithstanding what they claimed in the case of Floyd, +the subsequent denial by the Commons, and abandonment by themselves, +of any original jurisdiction, must stand in the way of their assuming +such authority over misdemeanours, more extensively at least than the +Commons, as has been shown, have in some instances exercised it. But, +while the latter have, with very few exceptions, and none since the +restoration, contented themselves with commitment during the session, +the Lords have sometimes imposed fines, and, on some occasions in the +reign of George II., as well as later, have adjudged parties to +imprisonment for a certain time. In one instance, so late as that +reign, they sentenced a man to the pillory; and this had been done +several times before. The judgments however of earlier ages give far +less credit to the jurisdiction than they take from it. Besides the +ever memorable case of Floyd, one John Blount, about the same time +(27th Nov. 1621), was sentenced by the Lords to imprisonment and hard +labour in Bridewell during life.[395] + +_Privileges of the house not controllable by courts of law._--It may +surprise those who have heard of the happy balance of the English +constitution, of the responsibility of every man to the law, and of +the security of the subject from all unlimited power, especially as to +personal freedom, that this power of awarding punishment at discretion +of the houses of parliament is generally reputed to be universal and +uncontrollable. This indeed was by no means received at the time when +the most violent usurpations under the name of privilege were first +made; the power was questioned by the royalist party who became its +victims, and, among others, by the gallant Welshman, Judge Jenkins, +whom the long parliament had shut up in the Tower. But it has been +several times brought into discussion before the ordinary tribunals; +and the result has been, that if the power of parliament is not +unlimited in right, there is at least no remedy provided against its +excesses. + +The House of Lords in 1677 committed to the Tower four peers, among +whom was the Earl of Shaftesbury, for a high contempt; that is, for +calling in question, during a debate, the legal continuance of +parliament after a prorogation of more than twelve months. Shaftesbury +moved the court of king's bench to release him upon a writ of habeas +corpus. But the judges were unanimously of opinion that they had no +jurisdiction to inquire into a commitment by the Lords of one of their +body, or to discharge the party during the session, even though there +might be, as appears to have been the case, such technical informality +on the face of the commitment as would be sufficient in an ordinary +case to set it aside.[396] + +Lord Shaftesbury was at this time in vehement opposition to the court. +Without insinuating that this had any effect upon the judges, it is +certain that a few years afterwards they were less inclined to magnify +the privileges of parliament. Some who had been committed, very +wantonly and oppressively, by the Commons in 1680, under the name of +abhorrers, brought actions for false imprisonment against Topham, the +serjeant-at-arms. In one of these he put in what is called a plea to +the jurisdiction, denying the competence of the court of king's bench, +inasmuch as the alleged trespass had been done by order of the +knights, citizens, and burgesses of parliament. But the judges +overruled this plea, and ordered him to plead in bar to the action. We +do not find that Topham complied with this; at least judgments appear +to have passed against him in these actions.[397] The Commons, after +the revolution, entered on the subject, and summoned two of the late +judges, Pemberton and Jones, to their bar. Pemberton answered that he +remembered little of the case; but if the defendant should plead that +he did arrest the plaintiff by order of the house, and should plead +that to the jurisdiction of the king's bench, he thought, with +submission, he could satisfy the house that such a plea ought to be +overruled, and that he took the law to be so very clearly. The house +pressed for his reasons, which he rather declined to give. But on a +subsequent day he fully admitted that the order of the house was +sufficient to take any one into custody, but that it ought to be +pleaded in bar, and not to the jurisdiction, which would be of no +detriment to the party, nor affect his substantial defence. It did not +appear however that he had given any intimation from the bench of so +favourable a leaning towards the rights of parliament; and his present +language might not uncharitably be ascribed to the change of times. +The house resolved that the orders and proceedings of this house being +pleaded to the jurisdiction of the court of king's bench, ought not to +be overruled; that the judges had been guilty of a breach of +privilege, and should be taken into custody.[398] + +I have already mentioned that, in the course of the controversy +between the two houses on the case of Ashby and White, the Commons had +sent some persons to Newgate, for suing the returning officer of +Aylesbury in defiance of their resolutions; and that, on their +application to the king's bench to be discharged on their habeas +corpus, the majority of the judges had refused it. Three judges, +Powis, Gould, and Powell, held that the courts of Westminster Hall +could have no power to judge of the commitments of the houses of +parliament; that they had no means of knowing what were the privileges +of the Commons, and consequently could not know their boundaries; that +the law and custom of parliament stood on its own basis, and was not +to be decided by the general rules of law; that no one had ever been +discharged from such a commitment, which was an argument that it could +not be done. Holt, the chief justice, on the other hand, maintained +that no privilege of parliament could destroy a man's right, such as +that of bringing an action for a civil injury; that neither house of +parliament could separately dispose of the liberty and property of the +people, which could only be done by the whole legislature; that the +judges were bound to take notice of the customs of parliament, because +they are part of the law of the land, and might as well be learned as +any other part of the law. "It is the law," he said, "that gives the +queen her prerogative; it is the law gives jurisdiction to the House +of Lords, as it is the law limits the jurisdiction of the House of +Commons." The eight other judges having been consulted, though not +judicially, are stated to have gone along with the majority of the +court, in holding that a commitment by either house of parliament was +not cognisable at law. But from some of the resolutions of the Lords +on this occasion which I have quoted above, it may seem probable that, +if a writ of error had been ever heard before them, they would have +leaned to the doctrine of Holt, unless indeed withheld by the +reflection that a similar principle might easily be extended to +themselves.[399] + +It does not appear that any commitment for breach of privilege was +disputed until the year 1751; when Mr. Alexander Murray, of whom +mention has been made, caused himself to be brought before the court +of king's bench on a habeas corpus. But the judges were unanimous in +refusing to discharge him. "The House of Commons," said Mr. Justice +Wright, "is a high court, and it is agreed on all hands that they have +power to judge of their own privileges; it need not appear to us what +the contempt is for; if it did appear, we could not judge +thereof."--"This court," said Mr. Justice Denison, "has no +jurisdiction in the present case. We granted the habeas corpus, not +knowing what the commitment was; but now it appears to be for a +contempt of the privileges of the House of Commons. What the +privileges of either house are we do not know; nor need they tell us +what the contempt was, because we cannot judge of it; for I must call +this court inferior to the Commons with respect to judging of their +privileges, and contempts against them." Mr. Justice Foster agreed +with the two others, that the house could commit for a contempt, +which, he said, "Holt had never denied in such a case as this before +them."[400] It would be unnecessary to produce later cases which have +occurred since the reign of George II., and elicited still stronger +expressions from the judges of their incapacity to take cognisance of +what may be done by the Houses of Parliament. + +Notwithstanding such imposing authorities, there have not been wanting +some who have thought that the doctrine of uncontrollable privilege is +both eminently dangerous in a free country, and repugnant to the +analogy of our constitution. The manly language of Lord Holt[401] has +seemed to rest on better principles of public utility, and even +perhaps of positive law. It is not however to be inferred that the +right of either house of parliament to commit persons, even not of +their own body, to prison, for contempts or breaches of privilege, +ought to be called in question. In some cases this authority is as +beneficial, and even indispensable, as it is ancient and established. +Nor do I by any means pretend that if the warrant of commitment merely +recites the party to have been guilty of a contempt or breach of +privilege, the truth of such allegation could be examined upon a +return to a writ of habeas corpus, any more than in an ordinary case +of felony. Whatever injustice may thus be done cannot have redress by +any legal means; because the House of Commons (or the Lords, as it may +be) are the fit judges of the fact, and must be presumed to have +determined it according to right. + +But it is a more doubtful question, whether, if they should pronounce +an offence to be a breach of privilege, as in the case of the +Aylesbury men, which a court of justice should perceive to be clearly +none, or if they should commit a man on a charge of misdemeanour, and +for no breach of privilege at all, as in the case of Mist the printer, +such excesses of jurisdiction might not legally be restrained by the +judges. If the resolutions of the Lords in the business of Ashby and +White are constitutional and true, neither house of parliament can +create to itself any new privilege; a proposition surely so consonant +to the rules of English law, which require prescription or statute as +the basis for every right, that few will dispute it; and it must be +still less lawful to exercise a jurisdiction over misdemeanours, by +committing a party who would regularly be only held to bail on such a +charge. Of this I am very certain, that if Mist, in the year 1721, had +applied for his discharge on a habeas corpus, it would have been far +more difficult to have opposed it on the score of precedent or of +constitutional right, than it was for the attorney-general of Charles +I., nearly one hundred years before, to resist the famous arguments of +Selden and Littleton, in the case of the Buckinghamshire gentlemen +committed by the council. If a few scattered acts of power can make +such precedents as a court of justice must take as its rule, I am sure +the decision, neither in this case nor in that of ship-money, was so +unconstitutional as we usually suppose: it was by dwelling on all +authorities in favour of liberty, and by setting aside those which +made against it, that our ancestors overthrew the claims of unbounded +prerogative. Nor is this parallel less striking when we look at the +tone of implicit obedience, respect, and confidence with which the +judges of the eighteenth century have spoken of the houses of +parliament, as if their sphere were too low for the cognisance of such +a transcendant authority.[402] The same language, almost to the words, +was heard from the lips of the Hydes and Berkeleys in the preceding +age, in reference to the king and to the privy council. But as, when +the spirit of the government was almost wholly monarchical, so since +it has turned chiefly to an aristocracy, the courts of justice have +been swayed towards the predominant influence, not, in general, by any +undue motives, but because it is natural for them to support power, to +shun offence, and to shelter themselves behind precedent. They have +also sometimes had in view the analogy of parliamentary commitments to +their own power of attachment for contempt, which they hold to be +equally uncontrollable; a doctrine by no means so dangerous to the +subject's liberty, but liable also to no trifling objections.[403] + +The consequences of this utter irresponsibility in each of the two +houses will appear still more serious, when we advert to the unlimited +power of punishment which it draws with it. The Commons indeed do not +pretend to imprison beyond the session; but the Lords have imposed +fines and definite imprisonment; and attempts to resist these have +been unsuccessful.[404] If the matter is to rest upon precedent, or +upon what overrides precedent itself, the absolute failure of +jurisdiction in the ordinary courts, there seems nothing (decency and +discretion excepted) to prevent their repeating the sentences of James +I.'s reign, whipping, branding, hard labour for life. Nay, they might +order the usher of the black rod to take a man from their bar, and +hang him up in the lobby. Such things would not be done, and, being +done, would not be endured; but it is much that any sworn ministers of +the law should, even by indefinite language, have countenanced the +legal possibility of tyrannous power in England. The temper of +government itself, in modern times, has generally been mild; and this +is probably the best ground of confidence in the discretion of +parliament; but popular, that is, numerous bodies, are always prone to +excess, both from the reciprocal influences of their passions, and the +consciousness of irresponsibility; for which reasons a democracy, that +is, the absolute government of the majority, is in general the most +tyrannical of any. Public opinion, it is true, in this country, +imposes a considerable restraint; yet this check is somewhat less +powerful in that branch of the legislature which has gone the farthest +in chastising breaches of privilege. I would not be understood, +however, to point at any more recent discussions on this subject; were +it not, indeed, beyond the limits prescribed to me, it might be shown +that the House of Commons, in asserting its jurisdiction, has receded +from much of the arbitrary power which it once arrogated, and which +some have been disposed to bestow upon it. + +IV. It is commonly and justly said that civil liberty is not only +consistent with, but in its terms implies, the restrictive limitations +of natural liberty which are imposed by law. But, as these are not the +less real limitations of liberty, it can hardly be maintained that the +subject's condition is not impaired by very numerous restraints upon +his will, even without reference to their expediency. The price may be +well paid; but it is still a price that it costs some sacrifice to +pay. Our statutes have been growing in bulk and multiplicity with the +regular session of parliament, and with the new system of government; +all abounding with prohibitions and penalties, which every man is +presumed to know, but which no man, the judges themselves included, +can really know with much exactness. We literally walk amidst the +snares and pitfalls of the law. The very doctrine of the more rigid +casuists, that men are bound in conscience to observe all the laws of +their country, has become impracticable through their complexity and +inconvenience; and most of us are content to shift off their penalties +in the _mala prohibita_ with as little scruple as some feel in +risking those of graver offences. But what more peculiarly belongs to +the present subject is the systematic encroachment upon ancient +constitutional principles, which has for a long time been made through +new enactments, proceeding from the Crown, chiefly in respect to the +revenue.[405] These may be traced indeed in the statute-book, at least +as high as the restoration, and really began in the arbitrary times of +revolution which preceded it. They have, however, been gradually +extended along with the public burthens, and as the severity of these +has prompted fresh artifices of evasion. It would be curious, but not +within the scope of this work, to analyse our immense fiscal law, and +to trace the history of its innovations. These consist, partly in +taking away the cognisance of offences against the revenue from +juries, whose partiality in such cases there was in truth much reason +to apprehend, and vesting it either in commissioners of the revenue +itself or in magistrates; partly in anomalous and somewhat arbitrary +power with regard to the collection; partly in deviations from the +established rules of pleading and evidence, by throwing on the accused +party in fiscal causes the burthen of proving his innocence, or by +superseding the necessity of rigorous proof as to matters wherein it +is ordinarily required; and partly in shielding the officers of the +Crown, as far as possible, from their responsibility for illegal +actions, by permitting special circumstances of justification to be +given in evidence without being pleaded, or by throwing impediments +of various kinds in the way of the prosecutor, or by subjecting him +to unusual costs in the event of defeat. + +_Extension of penal laws._--These restraints upon personal liberty, +and what is worse, these endeavours, as they seem, to prevent the fair +administration of justice between the Crown and the subject, have in +general, more especially in modern times, excited little regard as +they have passed through the houses of parliament. A sad necessity has +over-ruled the maxims of ancient law; nor is it my business to censure +our fiscal code, but to point out that it is to be counted as a +set-off against the advantages of the revolution, and has in fact +diminished the freedom and justice which we claim for our polity. And, +that its provisions have sometimes gone so far as to give alarm to not +very susceptible minds, may be shown from a remarkable debate in the +year 1737. A bill having been brought in by the ministers to prevent +smuggling, which contained some unusual clauses, it was strongly +opposed, among other peers, by Lord Chancellor Talbot himself, of +course, in the cabinet, and by Lord Hardwicke, then chief justice, a +regularly bred Crown lawyer, and in his whole life disposed to hold +very high the authority of government. They objected to a clause +subjecting any three persons travelling with arms, to the penalty of +transportation, on proof by two witnesses that their intention was to +assist in the clandestine landing, or carrying away prohibited or +uncustomed goods. "We have in our laws," said one of the opposing +lords, "no such thing as a crime by implication, nor can a malicious +intention ever be proved by witnesses. Facts only are admitted to be +proved, and from those facts the judge and jury are to determine with +what intention they were committed; but no judge or jury can ever, by +our laws, suppose, much less determine, that an action, in itself +innocent or indifferent, was attended with a criminal and malicious +intention. Another security for our liberties is, that no subject can +be imprisoned unless some felonious and high crime be sworn against +him. This, with respect to private men, is the very foundation stone +of all our liberties; and, if we remove it, if we but knock off a +corner, we may probably overturn the whole fabric. A third guard for +our liberties is that right which every subject has, not only to +provide himself with arms proper for his defence, but to accustom +himself to the use of those arms, and to travel with them whenever he +has a mind." But the clause in question, it was contended, was +repugnant to all the maxims of free government. No presumption of a +crime could be drawn from the mere wearing of arms, an act not only +innocent, but highly commendable; and therefore the admitting of +witnesses to prove that any of these men were armed, in order to +assist in smuggling, would be the admitting of witnesses to prove an +intention, which was inconsistent with the whole tenor of our +laws.[406] They objected to another provision, subjecting a party +against whom information should be given that he intended to assist in +smuggling, to imprisonment without bail, though the offence itself +were in its nature bailable; to another, which made informations for +assault upon officers of the revenue triable in any county of England; +and to a yet more startling protection thrown round the same favoured +class, that the magistrates should be bound to admit them to bail on +charges of killing or wounding any one in the execution of their duty. +The bill itself was carried by no great majority; and the provisions +subsist at this day, or perhaps have received a further extension. + +It will thus appear to every man who takes a comprehensive view of our +constitutional history, that the executive government, though shorn of +its lustre, has not lost so much of its real efficacy by the +consequences of the revolution as is often supposed; at least, that +with a regular army to put down insurrection, and an influence +sufficient to obtain fresh statutes of restriction, if such should +ever be deemed necessary, it is not exposed, in the ordinary course of +affairs, to any serious hazard. But we must here distinguish the +executive government, using that word in its largest sense, from the +Crown itself, or the personal authority of the sovereign. This is a +matter of rather delicate inquiry, but too material to be passed by. + +_Diminution of personal authority of the Crown._--The real power of +the prince, in the most despotic monarchy, must have its limits from +nature, and bear some proportion to his courage, his activity, and his +intellect. The tyrants of the East become puppets or slaves of their +vizirs; or it turns to a game of cunning, wherein the winner is he who +shall succeed in tying the bow-string round the other's neck. After +some ages of feeble monarchs, the titular royalty is found wholly +separated from the power of command, and glides on to posterity in its +languid channel, till some usurper or conqueror stops up the stream +for ever. In the civilised kingdoms of Europe, those very +institutions which secure the permanence of royal families, and +afford them a guarantee against manifest subjection to a minister, +take generally out of the hands of the sovereign the practical +government of his people. Unless his capacities are above the level of +ordinary kings, he must repose on the wisdom and diligence of the +statesmen he employs, with the sacrifice, perhaps, of his own +prepossessions in policy, and against the bent of his personal +affections. The power of a king of England is not to be compared with +an ideal absoluteness, but with that which could be enjoyed in the +actual state of society by the same person in a less bounded monarchy. + +The descendants of William the Conqueror on the English throne, down +to the end of the seventeenth century, have been a good deal above the +average in those qualities which enable or at least induce, kings to +take on themselves a large share of the public administration; as will +appear by comparing their line with that of the house of Capet, or +perhaps most others during an equal period. Without going farther +back, we know that Henry VII., Henry VIII., Elizabeth, the four kings +of the house of Stuart, though not always with as much ability as +diligence, were the master-movers of their own policy, not very +susceptible of advice, and always sufficiently acquainted with the +details of government to act without it. This was eminently the case +also with William III., who was truly his own minister, and much +better fitted for that office than those who served him. The king, +according to our constitution, is supposed to be present in council, +and was in fact usually, or very frequently, present, so long as the +council remained as a deliberative body for matters of domestic and +foreign policy. But, when a junto or cabinet came to supersede that +ancient and responsible body, the king himself ceased to preside, and +received their advice separately, according to their respective +functions of treasurer, secretary, or chancellor, or that of the whole +cabinet through one of its leading members. This change however was +gradual; for cabinet councils were sometimes held in the presence of +William and Anne; to which other counsellors, not strictly of that +select number, were occasionally summoned. + +But on the accession of the house of Hanover, this personal +superintendence of the sovereign necessarily came to an end. The fact +is hardly credible that, George I. being incapable of speaking +English, as Sir Robert Walpole was of conversing in French, the +monarch and his minister held discourse with each other in +Latin.[407] It is impossible that, with so defective a means of +communication (for Walpole, though by no means an illiterate man, +cannot be supposed to have spoken readily a language very little +familiar in this country), George could have obtained much insight +into his domestic affairs, or been much acquainted with the characters +of his subjects. We know, in truth, that he nearly abandoned the +consideration of both, and trusted his ministers with the entire +management of this kingdom, content to employ its great name for the +promotion of his electoral interests. This continued in a less degree +to be the case with his son, who, though better acquainted with the +language and circumstances of Great Britain, and more jealous of his +prerogative, was conscious of his incapacity to determine on matters +of domestic government, and reserved almost his whole attention for +the politics of Germany. + +_Party connections._--The broad distinctions of party contributed to +weaken the real supremacy of the sovereign. It had been usual before +the revolution, and in the two succeeding reigns, to select ministers +individually at discretion; and, though some might hold themselves at +liberty to decline office, it was by no means deemed a point of honour +and fidelity to do so. Hence men in the possession of high posts had +no strong bond of union, and frequently took opposite sides on public +measures of no light moment. The queen particularly was always loth to +discard a servant on account of his vote in parliament; a conduct +generous perhaps, but feeble, inconvenient, when carried to such +excess, in our constitution, and in effect holding out a reward to +ingratitude and treachery. But the whigs having come exclusively into +office under the line of Hanover (which, as I have elsewhere observed, +was inevitable), formed a sort of phalanx, which the Crown was not +always able to break, and which never could have been broken, but for +that internal force of repulsion by which personal cupidity and +ambition are ever tending to separate the elements of factions. It +became the point of honour among public men to fight uniformly under +the same banner, though not perhaps for the same cause; if indeed +there was any cause really fought for, but the advancement of a party. +In this preference of certain denominations, or of certain leaders, to +the real principles which ought to be the basis of political +consistency, there was an evident deviation from the true standard of +public virtue; but the ignominy attached to the dereliction of friends +for the sake of emolument, though it was every day incurred, must have +tended gradually to purify the general character of parliament. +Meanwhile the Crown lost all that party attachments gained; a truth +indisputable on reflection, though while the Crown and the party in +power act in the same direction, the relative efficiency of the two +forces is not immediately estimated. It was seen, however, very +manifestly in the year 1746; when, after long bickering between the +Pelhams and Lord Granville, the king's favourite minister, the former, +in conjunction with a majority of the cabinet, threw up their offices, +and compelled the king, after an abortive effort at a new +administration, to sacrifice his favourite, and replace those in power +whom he could not exclude from it. The same took place in a later +period of his reign, when after many struggles he submitted to the +ascendency of Mr. Pitt.[408] + +It seems difficult for any king of England, however conscientiously +observant of the lawful rights of his subjects, and of the limitations +they impose on his prerogative, to rest always very content with this +practical condition of the monarchy. The choice of his counsellors, +the conduct of government, are intrusted, he will be told, by the +constitution to his sole pleasure. Yet both in the one and the other +he finds a perpetual disposition to restrain his exercise of power; +and, though it is easy to demonstrate that the public good is far +better promoted by the virtual control of parliament and the nation +over the whole executive government, than by adhering to the letter of +the constitution, it is not to be expected that the argument will be +conclusive to a royal understanding. Hence, he may be tempted to play +rather a petty game, and endeavour to regain, by intrigue and +insincerity, that power of acting by his own will, which he thinks +unfairly wrested from him. A king of England, in the calculations of +politics, is little more than one among the public men of the day; +taller indeed, like Saul or Agamemnon, by the head and shoulders, and +therefore with no slight advantages in the scramble; but not a match +for the many, unless he can bring some dexterity to second his +strength, and make the best of the self-interest and animosities of +those with whom he has to deal. And of this there will generally be so +much, that in the long run he will be found to succeed in the greater +part of his desires. Thus George I. and George II., in whom the +personal authority seems to have been at the lowest point it has ever +reached, drew their ministers, not always willingly, into that course +of continental politics which was supposed to serve the purposes of +Hanover far better than of England. It is well known that the Walpoles +and the Pelhams condemned in private this excessive predilection of +their masters for their native country, which alone could endanger +their English throne.[409] Yet after the two latter brothers had +inveighed against Lord Granville, and driven him out of power for +seconding the king's pertinacity in continuing the war of 1743, they +went on themselves in the same track for at least two years, to the +imminent hazard of losing for ever the Low Countries and Holland, if +the French government, so indiscriminately charged with ambition, had +not displayed extraordinary moderation at the treaty of Aix la +Chapelle. The twelve years that ensued gave more abundant proofs of +the submissiveness with which the schemes of George II. for the good +of Hanover were received by his ministers, though not by his people; +but the most striking instance of all is the abandonment by Mr. Pitt +himself of all his former professions in pouring troops into Germany. +I do not inquire whether a sense of national honour might not render +some of these measures justifiable, though none of them were +advantageous; but it is certain that the strong bent of the king's +partiality forced them on against the repugnance of most statesmen, as +well as of the great majority in parliament and out of it. + +Comparatively however with the state of prerogative before the +revolution, we can hardly dispute that there has been a systematic +diminution of the reigning prince's control, which, though it may be +compensated or concealed in ordinary times by the general influence of +the executive administration, is of material importance in a +constitutional light. Independently of other consequences which might +be pointed out as probable or contingent, it affords a real security +against endeavours by the Crown to subvert or essentially impair the +other parts of our government. For, though a king may believe himself +and his posterity to be interested in obtaining arbitrary power, it is +far less likely that a minister should desire to do so--I mean +arbitrary, not in relation to temporary or partial abridgments of the +subject's liberty, but to such projects as Charles I. and James II. +attempted to execute. What indeed might be effected by a king, at once +able, active, popular, and ambitious, should such ever unfortunately +appear in this country, it is not easy to predict; certainly his reign +would be dangerous, on one side or other, to the present balance of +the constitution. But against this contingent evil, or the far more +probable encroachments of ministers, which, though not going the full +length of despotic power, might slowly undermine and contract the +rights of the people, no positive statutes can be devised so effectual +as the vigilance of the people themselves and their increased means of +knowing and estimating the measures of their government. + +_Influence of political writings._--The publication of regular +newspapers, partly designed for the communication of intelligence, +partly for the discussion of political topics, may be referred, upon +the whole, to the reign of Anne, when they obtained great circulation, +and became the accredited organs of different factions. The tory +ministers, towards the close of that reign, were annoyed at the +vivacity of the press both in periodical and other writings, which led +to a stamp-duty, intended chiefly to diminish their number, and was +nearly producing more pernicious restrictions, such as renewing the +licensing act, or compelling authors to acknowledge their names.[410] +These however did not take place, and the government more honourably +coped with their adversaries in the same warfare; nor, with Swift and +Bolingbroke on their side, could they require, except indeed through +the badness of their cause, any aid from the arm of power.[411] + +In a single hour these two great masters of language were changed from +advocates of the Crown to tribunes of the people; both more +distinguished as writers in this altered scene of their fortunes, and +certainly among the first political combatants with the weapons of the +press whom the world has ever known. Bolingbroke's influence was of +course greater in England; and, with all the signal faults of his +public character, with all the factiousness which dictated most of his +writings and the indefinite declamation or shallow reasoning which +they frequently display, they have merits not always sufficiently +acknowledged. He seems first to have made the tories reject their old +tenets of exalted prerogative and hereditary right, and scorn the +high-church theories which they had maintained under William and Anne. +His _Dissertation on Parties_, and _Letters on the History of +England_, are in fact written on whig principles (if I know what is +meant by that name) in their general tendency; however a politician, +who had always some particular end in view, may have fallen into +several inconsistencies. The same character is due to the _Craftsman_, +and to most of the temporary pamphlets directed against Sir Robert +Walpole. They teemed, it is true, with exaggerated declamations on the +side of liberty; but that was the side they took; it was to generous +prejudices they appealed, nor did they ever advert to the times before +the revolution but with contempt or abhorrence. Libels there were +indeed of a different class, proceeding from the jacobite school; but +these obtained little regard; the jacobites themselves, or such as +affected to be so, having more frequently espoused that cause from a +sense of dissatisfaction with the conduct of the reigning family than +from much regard to the pretensions of the other. Upon the whole +matter it must be evident to every person who is at all conversant +with the publications of George II.'s reign, with the poems, the +novels, the essays, and almost all the literature of the time, that +what are called the popular or liberal doctrines of government were +decidedly prevalent. The supporters themselves of the Walpole and +Pelham administrations, though professedly whigs, and tenacious of +revolution principles, made complaints, both in parliament and in +pamphlets, of the democratical spirit, the insubordination to +authority, the tendency to republican sentiments, which they alleged +to have gained ground among the people. It is certain that the tone of +popular opinion gave some countenance to these assertions, though much +exaggerated to create alarm in the aristocratical classes, and furnish +arguments against redress of abuses. + +_Publication of debates._--The two houses of parliament are supposed +to deliberate with closed doors. It is always competent for any one +member to insist that strangers be excluded; not on any special +ground, but by merely enforcing the standing order for that purpose. +It has been several times resolved, that it is a high breach of +privilege to publish any speeches or proceedings of the Commons; +though they have since directed their own votes and resolutions to be +printed. Many persons have been punished by commitment for this +offence; and it is still highly irregular, in any debate, to allude to +the reports in newspapers, except for the purpose of animadverting on +the breach of privilege.[412] Notwithstanding this pretended +strictness, notices of the more interesting discussions were +frequently made public; and entire speeches were sometimes circulated +by those who had sought popularity in delivering them. After the +accession of George I. we find a pretty regular account of debates in +an annual publication, Boyer's _Historical Register_, which was +continued to the year 1737. They were afterwards published monthly, +and much more at length, in the _London_ and the _Gentleman's +Magazines_; the latter, as is well known, improved by the pen of +Johnson yet not so as to lose by any means the leading scope of the +arguments. It follows of course that the restriction upon the presence +of strangers had been almost entirely dispensed with. A transparent +veil was thrown over this innovation by disguising the names of the +speakers, or more commonly by printing only initial and final letters. +This ridiculous affectation of concealment was extended to many other +words in political writings, and had not wholly ceased in the American +war. + +It is almost impossible to over-rate the value of this regular +publication of proceedings in parliament, carried as it has been in +our own time to nearly as great copiousness and accuracy as is +probably attainable. It tends manifestly and powerfully to keep within +bounds the supineness and negligence, the partiality and corruption, +to which every parliament, either from the nature of its composition +or the frailty of mankind, must more or less be liable. Perhaps the +constitution would not have stood so long, or rather would have stood +like an useless and untenanted mansion, if this unlawful means had not +kept up a perpetual intercourse, a reciprocity of influence between +the parliament and the people. A stream of fresh air, boisterous +perhaps sometimes as the winds of the north, yet as healthy and +invigorating, flows in to renovate the stagnant atmosphere, and to +prevent that _malaria_, which self-interest and oligarchical +exclusiveness are always tending to generate. Nor has its importance +been less perceptible in affording the means of vindicating the +measures of government, and securing to them, when just and +reasonable, the approbation of the majority among the middle ranks, +whose weight in the scale has been gradually increasing during the +last and present centuries. + +_Increased influence of the middle ranks._--This augmentation of the +democratical influence, using that term as applied to the commercial +and industrious classes in contradistinction to the territorial +aristocracy, was the slow but certain effect of accumulated wealth and +diffused knowledge, acting however on the traditional notions of +freedom and equality which had ever prevailed in the English people. +The nation, exhausted by the long wars of William and Anne, recovered +strength in thirty years of peace that ensued; and in that period, +especially under the prudent rule of Walpole, the seeds of our +commercial greatness were gradually ripened. It was evidently the most +prosperous season that England had ever experienced; and the +progression, though slow, being uniform, the reign perhaps of George +II. might not disadvantageously be compared, for the real happiness +of the community, with that more brilliant but uncertain and +oscillatory condition which has ensued. A distinguished writer has +observed that the labourer's wages have never, at least for many ages, +commanded so large a portion of subsistence as in this part of the +eighteenth century.[413] The public debt, though it excited alarms +from its magnitude, at which we are now accustomed to smile, and +though too little care was taken for redeeming it, did not press very +heavily on the nation; as the low rate of interest evinces, the +government securities at three per cent. having generally stood above +par. In the war of 1743, which from the selfish practice of relying +wholly on loans did not much retard the immediate advance of the +country, and still more after the peace of Aix la Chapelle, a striking +increase of wealth became perceptible.[414] This was shown in one +circumstance directly affecting the character of the constitution. The +smaller boroughs, which had been from the earliest time under the +command of neighbouring peers and gentlemen, or sometimes of the +Crown, were attempted by rich capitalists, with no other connection or +recommendation than one which is generally sufficient. This appears to +have been first observed in the general election of 1747 and +1754;[415] and though the prevalence of bribery is attested by the +statute-book, and the journals of parliament from the revolution, it +seems not to have broken down all floodgates till near the end of the +reign of George II. The sale of seats in parliament, like any other +transferable property, is never mentioned in any book that I remember +to have seen of an earlier date than 1760. We may dispense therefore +with the enquiry in what manner this extraordinary traffic has +affected the constitution, observing only that its influence must have +tended to counteract that of the territorial aristocracy, which is +still sufficiently predominant. The country gentlemen, who claimed to +themselves a character of more independence and patriotism than could +be found in any other class, had long endeavoured to protect their +ascendancy by excluding the rest of the community from parliament. +This was the principle of the bill, which, after being frequently +attempted, passed into a law during the tory administration of Anne, +requiring every member of the Commons, except those for the +universities, to possess, as a qualification for his seat, a landed +estate, above all incumbrances, of L300 a year.[416] By a later act of +George II., with which it was thought expedient, by the government of +the day, to gratify the landed interest, this property must be stated +on oath by every member on taking his seat, and, if required, at his +election.[417] The law is however notoriously evaded; and though much +might be urged in favour of rendering a competent income the condition +of eligibility, few would be found at present to maintain that the +freehold qualification is not required both unconstitutionally, +according to the ancient theory of representation, and absurdly, +according to the present state of property in England. But I am again +admonished, as I have frequently been in writing these last pages, to +break off from subjects that might carry me too far away from the +business of this history; and, content with compiling and selecting +the records of the past, to shun the difficult and ambitious office of +judging the present, or of speculating upon the future. + +FOOTNOTES: + +[294] 4 Anne, c. 8; _Parl. Hist._ 457 _et post_; Burnet, 429. + +[295] 6 Anne, c. 6; _Parl. Hist._ 613; Somerville, 296; _Hardw. +Papers_, ii. 473. Cunningham attests the zeal of the whigs for +abolishing the Scots privy council, though he is wrong in reckoning +Lord Cowper among them, whose name appears in the protest on the other +side. ii. 135, etc. The distinction of old and modern whigs appeared +again in this reign; the former professing, and in general feeling, a +more steady attachment to the principles of civil liberty. Sir Peter +King, Sir Joseph Jekyll, Mr. Wortley, Mr. Hampden, and the historian +himself, were of this description; and consequently did not always +support Godolphin. P. 210, etc. Mr. Wortley brought in a bill, which +passed the Commons in 1710, for voting by ballot. It was opposed by +Wharton and Godolphin in the Lords, as dangerous to the constitution, +and thrown out. Wortley, he says, went the next year to Venice, on +purpose to inquire into the effects of the ballot which prevailed +universally in that republic. P. 285. + +[296] _Parl. Hist._ vi. 805; Burnet, 537; _State Trials_, xv. 1. It is +said in Coxe's _Life of Marlborough_, iii. 141, that Marlborough and +Somers were against this prosecution. This writer goes out of his way +to make a false and impertinent remark on the managers of the +impeachment, as giving encouragement by their speeches to +licentiousness and sedition. _Id._ 166. + +[297] "The managers appointed by the House of Commons," says an ardent +jacobite, "behaved with all the insolence imaginable. In their +discourse they boldly asserted, even in her majesty's presence, that, +if the right to the crown was hereditary and indefeasible, the prince +beyond the seas, meaning the king, and not the queen, had the legal +title to it, she having no claim thereto, but what she owed to the +people; and that by the revolution principles, on which the +constitution was founded and to which the laws of the land agreed, the +people might turn out or lay aside their sovereigns as they saw cause. +Though, no doubt of it, there was a great deal of truth in these +assertions, it is easy to be believed that the queen was not well +pleased to hear them maintained, even in her own presence and in so +solemn a manner, before such a great concourse of her subjects. For, +though princes do cherish these and the like doctrines, whilst they +serve as the means to advance themselves to a crown, yet being once +possessed thereof, they have as little satisfaction in them as those +who succeed by an hereditary unquestionable title." _Lockhart Papers_, +i. 312. + +It is probable enough that the last remark has its weight, and that +the queen did not wholly like the speeches of some of the managers; +and yet nothing can be more certain than that she owed her crown in +the first instance, and the preservation of it at that very time, to +those insolent doctrines which wounded her royal ear; and that the +genuine loyalists would soon have lodged her in the Tower. + +[298] _State Trials_, xv. 95. + +[299] _Id._ 115. + +[300] _Id._ 127. + +[301] _Id._ 61. + +[302] _State Trials_, 196, 229. It is observed by Cunningham (p. 286) +that Sacheverell's counsel, except Phipps, were ashamed of him; which +is really not far from the case. "The doctor," says Lockhart, +"employed Sir Simon, afterwards Lord Harcourt, and Sir Constantine +Phipps as his counsel, who defended him the best way they could, +though they were hard put to it to maintain the hereditary right and +unlimited doctrine of non-resistance, and not condemn the revolution. +And the truth on it is, these are so inconsistent with one another +that the chief arguments alleged in this and other parallel cases came +to no more than this; that the revolution was an exception from the +nature of government in general, and the constitution and laws of +Britain in particular, which necessity in that particular case made +expedient and lawful." _Ibid._ + +[303] _State Trials_, 407. + +[304] _Id._ 110. + +[305] Cunningham says that the Duke of Leeds spoke strongly in favour +of the revolution, though he voted Sacheverell not guilty. P. 298. +Lockhart observes that he added success to necessity, as an essential +point for rendering the revolution lawful. + +[306] The homilies are so much more vehement against resistance than +Sacheverell was, that it would have been awkward to pass a rigorous +sentence on him. In fact, he or any other clergyman had a right to +preach the homily against rebellion instead of a sermon. As to their +laying down general rules without adverting to the exceptions, an +apology which the managers set up for them, it was just as good for +Sacheverell; and the homilies expressly deny all possible exceptions. +Tillotson had a plan of dropping these old compositions, which in some +doctrinal points, as well as in the tenet of non-resistance, do not +represent the sentiments of the modern church, though, in a general +way, it subscribes to them. But the times were not ripe for this, or +some other of that good prelate's designs. Wordsworth's _Eccles. +Biog._ vol. vi. The quotations from the homilies and other approved +works by Sacheverell's counsel are irresistible, and must have +increased the party spirit of the clergy. "No conjuncture of +circumstances whatever," says Bishop Sanderson, "can make that +expedient to be done at any time that is of itself, and in the kind, +unlawful. For a man to take up arms offensive or defensive against a +lawful sovereign, being a thing in its nature simply and _de toto +genere_ unlawful, may not be done by any man, at any time, in any +case, upon any colour or pretence whatsoever." _State Trials_, 231. + +[307] _Parl. Hist._ vi. 57. They did not scruple, however, to say what +cost nothing but veracity and gratitude, that Marlborough had +retrieved the honour of the nation. This was justly objected to, as +reflecting on the late king, but carried by 180 to 80. _Id._ 58; +Burnet. + +[308] Coxe's _Marlborough_, i. 483. Mr. Smith was chosen speaker by +248 to 205, a slender majority; but some of the ministerial party seem +to have thought him too much a whig. _Id._ 485; _Parl. Hist._ 450. The +whig newspapers were long hostile to Marlborough. + +[309] Burnet rather gently slides over these jealousies between +Godolphin and the whig junto; and Tindal, his mere copyist, is not +worth mentioning. But Cunningham's history, and still more the letters +published in Coxe's _Life of Marlborough_, show better the state of +party intrigues; which the _Parliamentary History_ also illustrates, +as well as many pamphlets of the time. Somerville has carefully +compiled as much as was known when he wrote. + +[310] _Parl. Hist._ vi. 4. + +[311] Nov. 27; _Parl. Hist._ 477. + +[312] Coxe's _Marlborough_, i. 453, ii. 110; Cunningham, ii. 52, 83. + +[313] _Memoires de Torcy_, vol. ii. _passim_; Coxe's _Marlborough_, +vol. iii.; Bolingbroke's _Letters on History_, and Lord Walpole's +answer to them; Cunningham; Somerville, 840. + +[314] The late biographer of Marlborough asserts that he was against +breaking off the conferences in 1709, though clearly for insisting on +the cession of Spain (iii. 40). Godolphin, Somers, and the whigs in +general, expected Louis XIV. to yield the thirty-seventh article. +Cowper, however, was always doubtful of this. _Id._ 176. + +It is very hard to pronounce, as it appears to me, on the great +problem of Louis's sincerity in this negotiation. No decisive evidence +seems to have been brought on the contrary side. The most remarkable +authority that way is a passage in the _Memoires of St. Phelipe_, iii. +263, who certainly asserts that the King of France had, without the +knowledge of any of his ministers, assured his grandson of a continued +support. But the question returns as to St. Phelipe's means of knowing +so important a secret. On the other hand, I cannot discover in the +long correspondence between Madame de Maintenon and the Princesse des +Ursins the least corroboration of these suspicions, but much to the +contrary effect. Nor does Torcy drop a word, though writing when all +was over, by which we should infer that the court of Versailles had +any other hopes left in 1709, than what still lingered in their heart +from the determined spirit of the Castilians themselves. + +It appears by the _Memoires de Noailles_, iii. 10 (edit. 1777), that +Louis wrote to Philip, 26th Nov. 1708, hinting that he must +reluctantly give him up, in answer to one wherein the latter had +declared that he would not quit Spain while he had a drop of blood in +his veins. And on the French ambassador at Madrid, Amelot, +remonstrating against the abandonment of Spain, with an evident +intimation that Philip could not support himself alone, the King of +France answered that he must end the war at any price. 15th April +1709. _Id._ 34. In the next year, after the battle of Saragosa, which +seemed to turn the scale wholly against Philip, Noailles was sent to +Madrid in order to persuade that prince to abandon the contest. _Id._ +107. There were some in France who would even have accepted the +thirty-seventh article, of whom Madame de Maintenon seems to have +been. P. 117. We may perhaps think that an explicit offer of Naples, +on the part of the allies, would have changed the scene; nay, it seems +as if Louis would have been content at this time with Sardinia and +Sicily. P. 108. + +[315] A contemporary historian of remarkable gravity observes: "It was +strange to see how much the desire of French wine, and the dearness of +it, alienated many men from the Duke of Marlborough's friendship." +Cunningham, ii. 220. The hard drinkers complained that they were +poisoned by port; these formed almost a party: Dr. Aldrich (Dean of +Christchurch, surnamed the priest of Bacchus), Dr. Ratcliffe, General +Churchill, etc. "And all the bottle companions, many physicians, and +great numbers of the lawyers and inferior clergy, and, in fine, the +loose women too, were united together in the faction against the Duke +of Marlborough." + +[316] A bill was attempted in 1704 to recruit the army by a forced +conscription of men from each parish, but laid aside as +unconstitutional. Boyer's _Reign of Queen Anne_, p. 123. It was tried +again in 1707 with like success. P. 319. But it was resolved instead +to bring in a bill for raising a sufficient number of troops out of +such persons as have no lawful calling or employment. Stat. 4 Anne, c. +10; _Parl. Hist._ 335. The parish officers were thus enabled to press +men for the land service; a method hardly more unconstitutional than +the former, and liable to enormous abuses. The act was temporary, but +renewed several times during the war. It was afterwards revived in +1757 (30 Geo. 2, c. 8), but never, I believe, on any later occasion. + +[317] Every contemporary writer bears testimony to the exhaustion of +France, rendered still more deplorable by the unfavourable season of +1709, which produced a famine. Madame de Maintenon's letters to the +Princess des Ursins are full of the public misery, which she did not +soften, out of some vain hope that her inflexible correspondent might +relent at length, and prevail on the King and Queen of Spain to +abandon their throne. + +[318] It is evident from Macpherson's _Papers_, that all hopes of a +restoration in the reign of Anne were given up in England. They soon +revived, however, as to Scotland, and grew stronger about the time of +the union. + +[319] The _Rehearsal_ is not written in such a manner as to gain over +many proselytes. The scheme of fighting against liberty with her own +arms had not yet come into vogue; or rather Leslie was too mere a +bigot to practise it. He is wholly for arbitrary power; but the +commons stuff of his journal is high-church notions of all +descriptions. This could not win many in the reign of Anne. + +[320] Macpherson, i. 608. If Carte's anecdotes are true, which is very +doubtful, Godolphin, after he was turned out, declared his concern at +not having restored the king; that he thought Harley would do it, but +by French assistance, which he did not intend; that the tories had +always distressed him, and his administration had passed in a struggle +with the whig junto. _Id._ 170. Somerville says, he was assured that +Carte was reckoned credulous and ill-informed by the jacobites. P. +273. It seems indeed, by some passages in Macpherson's _Papers_, that +the Stuart agents either kept up an intercourse with Godolphin, or +pretended to do so. Vol. ii. 2 _et post_. But it is evident that they +had no confidence in him. + +It must be observed, however, that Lord Dartmouth, in his notes on +Burnet, repeatedly intimates that Godolphin's secret object in his +ministry was the restoration of the house of Stuart, and that with +this view he suffered the act of security in Scotland to pass, which +raised such a clamour that he was forced to close with the whigs in +order to save himself. It is said also by a very good authority, Lord +Hardwicke (note on Burnet, Oxf. edit. v. 352) that there was something +not easy to be accounted for in the conduct of the ministry, preceding +the attempt on Scotland in 1708; giving us to understand in the +subsequent part of the note that Godolphin was suspected of connivance +with it. And this is confirmed by Ker of Kersland, who directly +charges the treasurer with extreme remissness, if not something worse. +_Memoirs_, i. 54. See also Lockhart's _Commentaries_ (in _Lockhart +Papers_, i. 308). Yet it seems almost impossible to suspect Godolphin +of such treachery, not only towards the protestant succession, but his +mistress herself. + +[321] Macpherson, ii. 74 _et post_; Hooke's _Negotiations_; Lockhart's +_Commentaries_; Ker of Kersland's _Memoirs_, 45; Burnet; Cunningham; +Somerville. + +[322] Burnet, 502. + +[323] Macpherson, ii. 158, 228, 283, and see Somerville, 272. + +[324] _Memoirs of Berwick_, 1778 (English translation). And compare +Lockhart's _Commentaries_, p. 368; Macpherson, sub. ann. 1712 and +1713, _passim_. + +[325] The pamphlets on Harley's side, and probably written under his +inspection, for at least the first year after his elevation to power, +such as one entitled "Faults on both Sides," ascribed to Richard +Harley, his relation (_Somers Tracts_, xii. 678); "Spectator's Address +to the Whigs on Occasion of the stabbing Mr. Harley," or the "Secret +History of the October Club," 1711 (I believe by De Foe), seem to have +for their object to reconcile as many of the whigs as possible to his +administration, and to display his aversion to the violent tories. +There can be no doubt that his first project was to have excluded the +more acrimonious whigs, such as Wharton and Sunderland, as well as the +Duke of Marlborough and his wife, and coalesced with Cowper and +Somers, both of whom were also in favour with the queen. But the +steadiness of the whig party, and their resentment of his duplicity, +forced him into the opposite quarters, though he never lost sight of +his schemes for reconciliation. + +The dissembling nature of this unfortunate statesman rendered his +designs suspected. The whigs, at least in 1713, in their +correspondence with the court of Hanover, speak of him as entirely in +the jacobite interest. Macpherson, ii. 472, 509. Cunningham, who is +not on the whole unfavourable to Harley, says, that "men of all +parties agreed in concluding that his designs were in the Pretender's +favour. And it is certain that he affected to have it thought so."--P. +303. Lockhart also bears witness to the reliance placed on him by the +jacobites, and argues with some plausibility (p. 377) that the Duke of +Hamilton's appointment as ambassador to France, in 1712, must have +been designed to further their object; though he believed that the +death of that nobleman, in a duel with Lord Mohun, just as he was +setting out for Paris, put a stop to the scheme, and "questions if it +was ever heartily re-assumed by Lord Oxford."--"This I know, that his +lordship regretting to a friend of mine the duke's death, next day +after it happened, told him that it disordered all their schemes, +seeing Great Britain did not afford a person capable to discharge the +trust which was committed to his grace, which sure was somewhat very +extraordinary; and what other than the king's restoration could there +be of so very great importance, or require such dexterity in managing, +is not easy to imagine. And indeed it is more than probable that +before his lordship could pitch upon one he might depend on in such +weighty matters, the discord and division which happened betwixt him +and the other ministers of state diverted or suspended his design of +serving the king." Lockhart's _Commentaries_, p. 410. But there is +more reason to doubt whether this design to serve the king ever +existed. + +[326] If we may trust to a book printed in 1717, with the title, +"Minutes of Monsieur Mesnager's Negotiations with the Court of England +towards the Close of the last Reign, written by himself," that agent +of the French cabinet entered into an arrangement with Bolingbroke in +March 1712, about the Pretender. It was agreed that Louis should +ostensibly abandon him, but should not be obliged, in case of the +queen's death, not to use endeavours for his restoration. Lady Masham +was wholly for this; but owned "the rage and irreconcilable aversion +of the greatest part of the common people to her (the queen's) brother +was grown to a height." But I must confess that, although Macpherson +has extracted the above passage, and a more judicious writer, +Somerville, quotes the book freely as genuine (_Hist. of Anne_, p. +581, etc.), I found in reading it what seemed to me the strongest +grounds of suspicion. It is printed in England, without a word of +preface to explain how such important secrets came to be divulged, or +by what means the book came before the world; the correct information +as to English customs and persons frequently betrays a native pen; the +truth it contains, as to jacobite intrigues, might have transpired +from other sources, and in the main was pretty well suspected, as the +Report of the Secret Committee on the Impeachments in 1715 shows; so +that, upon the whole, I cannot but reckon it a forgery in order to +injure the tory leaders. + +But however this may be, we find Bolingbroke in correspondence with +the Stuart agents in the later part of 1712. Macpherson, 366. And his +own correspondence with Lord Strafford shows his dread and dislike of +Hanover (_Bol. Corr._ ii. 487 _et alibi_). The Duke of Buckingham +wrote to St. Germains in July that year, with strong expressions of +his attachment to the cause, and pressing the necessity of the +prince's conversion to the protestant religion. Macpherson, 327. +Ormond is mentioned in the Duke of Berwick's letters as in +correspondence with him; and Lockhart says there was no reason to make +the least question of his affection to the king, whose friends were +consequently well pleased at his appointment to succeed Marlborough in +the command of the army, and thought it portended some good designs in +favour of him. _Id._ 376. + +Of Ormond's sincerity in this cause there can indeed be little doubt; +but there is almost as much reason to suspect that of Bolingbroke as +of Oxford; except that, having more rashness and less principle, he +was better fitted for so dangerous a counter-revolution. But in +reality he had a perfect contempt for the Stuart and tory notions of +government, and would doubtless have served the house of Hanover with +more pleasure, if his prospects in that quarter had been more +favourable. It appears that in the session of 1714, when he had become +lord of the ascendant, he disappointed the zealous royalists by his +delays as much as his more cautious rival had done before. Lockhart, +470. This writer repeatedly asserts that a majority of the House of +Commons, both in the parliament of 1710 and that of 1713, wanted only +the least encouragement from the court to have brought about the +repeal of the act of settlement. But I think this very doubtful; and I +am quite convinced that the nation would not have acquiesced in it. +Lockhart is sanguine, and ignorant of England. + +It must be admitted that part of the cabinet were steady to the +protestant succession. Lord Dartmouth, Lord Powlett, Lord Trevor, and +the Bishop of London were certainly so; nor can there be any +reasonable doubt, as I conceive, of the Duke of Shrewsbury. On the +other side, besides Ormond, Harcourt, and Bolingbroke, were the Duke +of Buckingham, Sir William Wyndham, and probably Mr. Bromley. + +[327] It is said that the Duke of Leeds, who was now in the Stuart +interest, had sounded her in 1711, but with no success in discovering +her intention. Macpherson, 212. The Duke of Buckingham pretended, in +the above-mentioned letter to St. Germains, June 1712, that he had +often pressed the queen on the subject of her brother's restoration, +but could get no other answer than, "you see he does not make the +least step to oblige me;" or, "he may thank himself for it: he knows I +always loved him better than the other." _Id._ 328. This alludes to +the Pretender's pertinacity, as the writer thought it, in adhering to +his religion; and it may be very questionable, whether he had ever +such conversation with the queen at all. But, if he had, it does not +lead to the supposition, that under all circumstances she meditated +his restoration. If the book under the name of Mesnager is genuine, +which I much doubt, Mrs. Masham had never been able to elicit anything +decisive of her majesty's inclinations; nor do any of the Stuart +correspondents in Macpherson pretend to know her intentions with +certainty. The following passage in Lockhart seems rather more to the +purpose: On his coming to parliament in 1710, with a "high monarchical +address," which he had procured from the county of Edinburgh, "the +queen told me, though I had almost always opposed her measures, she +did not doubt of my affection to her person, and hoped I would not +concur in the design against Mrs. Masham, or for bringing over the +Prince of Hanover. At first I was somewhat surprised, but recovering +myself, I assured her I should never be accessary to the imposing any +hardship or affront upon her; and as for the Prince of Hanover, her +majesty might judge from the address I had read, that I should not be +acceptable to my constituents if I gave my consent for bringing over +any of that family, either now or at any time hereafter. At that she +smiled, and I withdrew; and then she said to the duke (Hamilton), she +believed I was an honest man and a fair dealer, and the duke replied, +he could assure her I liked her majesty and all her father's +bairns."--P. 317. It appears in subsequent parts of this book, that +Lockhart and his friends were confident of the queen's inclinations in +the last year of her life, though not of her resolution. + +The truth seems to be, that Anne was very dissembling, as Swift +repeatedly says in his private letters, and as feeble and timid +persons in high station generally are; that she hated the house of +Hanover, and in some measure feared them; but that she had no regard +for the Pretender (for it is really absurd to talk like Somerville of +natural affection under all the circumstances), and feared him a great +deal more than the other; that she had, however, some scruples about +his right, which were counterbalanced by her attachment to the church +of England; consequently, that she was wavering among opposite +impulses, but with a predominating timidity which would have probably +kept her from any change. + +[328] The Duchess of Gordon, in June 1711, sent a silver medal to the +faculty of advocates at Edinburgh, with a head on one side, and the +inscription, "Cujus est"; on the other, the British isles, with the +word "Reddite." The dean of faculty, Dundas of Arniston, presented +this medal; and there seems reason to believe that a majority of the +advocates voted for its reception. Somerville, p. 452. Bolingbroke, in +writing on the subject to a friend, it must be owned, speaks of the +proceeding with due disapprobation. _Bolingbroke Correspondence_, i. +343. No measures, however, were taken to mark the court's displeasure. + +"Nothing is more certain," says Bolingbroke in his letter to Sir +William Wyndham, perhaps the finest of his writings, "than this truth, +that there was at that time _no formed design_ in the party, whatever +views some particular men might have, against his majesty's accession +to the throne."--P. 22. This is in effect to confess a great deal; and +in other parts of the same letter, he makes admissions of the same +kind: though he says that he and other tories had determined, before +the queen's death, to have no connection with the Pretender, on +account of his religious bigotry. P. 111. + +[329] Lockhart gives us a speech of Sir William Whitelock in 1714, +bitterly inveighing against the elector of Hanover, who, he hoped, +would never come to the crown. Some of the whigs cried out on this +that he should be brought to the bar; when Whitelock said he would not +recede an inch; he hoped the queen would outlive that prince, and in +comparison to her he did not value all the princes of Germany one +farthing. P. 469. Swift, in "Some Free Thoughts upon the present State +of Affairs," 1714, speaks with much contempt of the house of Hanover +and its sovereign; and suggests, in derision, that the infant son of +the electoral prince might be invited to take up his residence in +England. He pretends in this tract, as in all his writings, to deny +entirely that there was the least tendency towards jacobitism, either +in any one of the ministry, or even any eminent individual out of it; +but with so impudent a disregard of truth that I am not perfectly +convinced of his own innocence as to that intrigue. Thus, in his +"Inquiry into the Behaviour of the Queen's last Ministry," he says, "I +remember, during the late treaty of peace, discoursing at several +times with some very eminent persons of the opposite side with whom I +had long acquaintance. I asked them seriously, whether they or any of +their friends did in earnest believe, or suspect the queen or the +ministry to have any favourable regards towards the Pretender? They +all confessed for themselves that they believed nothing of the +matter," etc. He then tells us that he had the curiosity to ask almost +every person in great employment, whether they knew or had heard of +any one particular man, except professed nonjurors, that discovered +the least inclination towards the Pretender; and the whole number they +could muster up did not amount to above five or six; among whom one +was a certain old lord lately dead, and one a private gentleman, of +little consequence and of a broken fortune, etc. (vol. 15, p. 94, +edit. 12mo, 1765). This acute observer of mankind well knew that lying +is frequently successful in the ratio of its effrontery and +extravagance. There are, however, some passages in this tract, as in +others written by Swift, in relation to that time, which serve to +illustrate the obscure machinations of those famous last years of the +queen. + +[330] On a motion in the House of Lords that the protestant succession +was in danger, April 5, 1714, the ministry had only a majority of 76 +to 69, several bishops and other tories voting against them. _Parl. +Hist._ vi. 1334. Even in the Commons the division was but 256 to 208. +_Id._ 1347. + +[331] Somerville has a separate dissertation on the danger of the +protestant succession, intended to prove that it was in no danger at +all, except through the violence of the whigs in exasperating the +queen. It is true that Lockhart's _Commentaries_ were not published at +this time; but he had Macpherson before him, and the _Memoirs of +Berwick_, and even gave credit to the authenticity of Mesnager, which +I do not. But this sensible, and on the whole impartial writer, had +contracted an excessive prejudice against the whigs of that period as +a party, though he seems to adopt their principles. His dissertation +is a laboured attempt to explain away the most evident facts, and to +deny what no one of either party at that time would probably have in +private denied. + +[332] The queen was very ill about the close of 1713; in fact it +became evident, as it had long been apprehended, that she could not +live much longer. The Hanoverians, both whigs and tories, urged that +the electoral prince should be sent for; it was thought that whichever +of the competitors should have the start upon her death would succeed +in securing the crown. Macpherson, 385, 546, 557 _et alibi_. Can there +be a more complete justification of this measure, which Somerville and +the tory writers treat as disrespectful to the queen? The Hanoverian +envoy, Schutz, demanded the writ for the electoral prince without his +master's orders; but it was done with the advice of all the whig +leaders (_Id._ 592), and with the sanction of the Electress Sophia, +who died immediately after. "All who are for Hanover believe the +coming of the electoral prince to be advantageous; all those against +it are frightened at it." _Id._ 596. It was doubtless a critical +moment; and the court of Hanover might be excused for pausing in the +choice of dangers, as the step must make the queen decidedly their +enemy. She was greatly offended, and forbade the Hanoverian minister +to appear at court. Indeed she wrote to the elector, on May 19, +expressing her disapprobation of the prince's coming over to England, +and "her determination to oppose a project so contrary to her royal +authority, however fatal the consequences may be." _Id._ 621. Oxford +and Bolingbroke intimate the same. _Id._ 593; and see _Bolingbroke +Correspondence_, iv. 512, a very strong passage. The measure was given +up, whether from unwillingness on the part of George to make the queen +irreconcilable, or, as is at least equally probable, out of jealousy +of his son. The former certainly disappointed his adherents by more +apparent apathy than their ardour required; which will not be +surprising, when we reflect that, even upon the throne, he seemed to +care very little about it. Macpherson, sub ann. 1714, _passim_. + +[333] He was strongly pressed by his English adherents to declare +himself a protestant. He wrote a very good answer. Macpherson, 436. +Madame de Maintenon says, some catholics urged him to the same course, +"par une politique poussee un peu trop loin." _Lettres a la Princesse +des Ursins_, ii. 428. + +[334] The rage of the tory party against the queen and Lord Oxford for +retaining whigs in office is notorious from Swift's private letters, +and many other authorities. And Bolingbroke, in his letter to Sir W. +Wyndham, very fairly owns their intention "to fill the employments of +the kingdom, down to the meanest, with tories."--"We imagined," he +proceeds, "that such measures, joined to the advantages of our numbers +and our property, would secure us against all attempts during her +reign; and that we should soon become too considerable not to make our +terms in all events which might happen afterwards; concerning which, +to speak truly, I believe few or none of us had any very settled +resolution." P. 11. It is rather amusing to observe that those who +called themselves the tory or church party, seem to have fancied they +had a natural right to power and profit, so that an injury was done +them when these rewards went another way; and I am not sure that +something of the same prejudice has not been perceptible in times a +good deal later. + +[335] Though no republican party, as I have elsewhere observed, could +with any propriety be said to exist, it is easy to perceive that a +certain degree of provocation from the Crown might have brought one +together in no slight force. These two propositions are perfectly +compatible. + +[336] This is well put by Bishop Willis in his speech on the bill +against Atterbury. _Parl. Hist._ viii. 305. In a pamphlet, entitled +"English Advice to the Freeholders" (_Somers Tracts_, xiii. 521), +ascribed to Atterbury himself, a most virulent attack is made on the +government, merely because what he calls the church party had been +thrown out of office. "Among all who call themselves whigs," he says, +"and are of any consideration as such, name me the man I cannot prove +to be an inveterate enemy to the church of England; and I will be a +convert that instant to their cause." It must be owned perhaps that +the whig ministry might better have avoided some reflections on the +late times in the addresses of both houses; and still more, some not +very constitutional recommendations to the electors, in the +proclamation calling the new parliament in 1714 _Parl. Hist._ vi. 44, +50. "Never was prince more universally well received by subjects than +his present majesty on his arrival; and never was less done by a +prince to create a change in people's affections. But so it is, a very +observable change hath happened. Evil infusions were spread on the one +hand; and, it may be, there was too great a stoicism or contempt of +popularity on the other." "Argument to prove the Affections of the +People of England to be the best Security for the Government," p. 11 +(1716). This is the pamphlet written to recommend lenity towards the +rebels, which Addison has answered in the _Freeholder_. It is +invidious, and perhaps secretly jacobite. Bolingbroke observes, in the +letter already quoted, that the Pretender's journey from Bar, in 1714, +was a mere farce, no party being ready to receive him; but "the +menaces of the whigs, backed by some very rash declarations [those of +the king], and little circumstances of humour, which frequently offend +more than real injuries, and by the entire change of all persons in +employment, blew up the coals."--P. 34. Then, he owns, the tories +looked to Bar. "The violence of the whigs forced them into the arms of +the Pretender." It is to be remarked on all this, that, by +Bolingbroke's own account, the tories, if they had no "formed design" +or "settled resolution" that way, were not very determined in their +repugnance before the queen's death; and that the chief violence of +which they complained was, that George chose to employ his friends +rather than his enemies. + +[337] The trials after this rebellion were not conducted with quite +that appearance of impartiality which we now exact from judges. Chief +Baron Montagu reprimanded a jury for acquitting some persons indicted +for treason; and Tindal, an historian very strongly on the court side, +admits that the dying speeches of some of the sufferers made an +impression on the people, so as to increase rather than lessen the +number of jacobites. _Continuation of Rapin_, p. 501 (folio edit.). +There seems, however, upon the whole, to have been greater and less +necessary severity after the rebellion in 1745; and upon this latter +occasion it is impossible not to reprobate the execution of Mr. +Ratcliffe (brother of that Earl of Derwentwater who had lost his head +in 1716), after an absence of thirty years from this country, to the +sovereign of which he had never professed allegiance nor could owe +any, except by the fiction of our law. + +[338] _Parl. Hist._ 73. It was carried against Oxford by 247 to 127, +Sir Joseph Jekyll strongly opposing it, though he had said before +(_Id._ 67) that they had more than sufficient evidence against +Bolingbroke on the statute of Edward III. A motion was made in the +Lords, to consult the judges whether the articles amounted to treason, +but lost by 84 to 52. _Id._ 154. Lord Cowper on this occasion +challenged all the lawyers in England to disprove that proposition. +The proposal of reference to the judges was perhaps premature; but the +house must surely have done this before their final sentence, or shown +themselves more passionate than in the case of Lord Strafford. + +[339] _Parl. Hist._ vii. 486. The division was 88 to 56. There was a +schism in the whig party at this time; yet I should suppose the +ministers might have prevented this defeat, if they had been anxious +to do so. It seems, however, by a letter in Coxe's _Memoirs of +Walpole_, vol. ii. p. 123, that the government were for dropping the +charge of treason against Oxford, "it being very certain that there is +not sufficient evidence to convict him of that crime," but for +pressing those of misdemeanour. + +[340] _Parl. Hist._ vii. 105. + +[341] _Parl. Hist._ vi. 972. Burnet, 560, makes some observations on +the vote passed on this occasion, censuring the late ministers for +advising an offensive war in Spain. "A resolution in council is only +the sovereign's act, who upon hearing his counsellors deliver their +opinions, forms his own resolution; a counsellor may indeed be liable +to censure for what he may say at that board; but the resolution taken +there has been hitherto treated with a silent respect; but by that +precedent it will be hereafter subject to a parliamentary inquiry." +Speaker Onslow justly remarks that these general and indefinite +sentiments are liable to much exception, and that the bishop did not +try them by his whig principles. The first instance where I find the +responsibility of some one for every act of the Crown strongly laid +down is in a speech of the Duke of Argyle, in 1739. _Parl. Hist._ ix. +1138. "It is true," he says, "the nature of our constitution requires +that public acts should be issued out in his majesty's name; but for +all that, my lords, he is not the author of them." + +[342] "Lord Bolingbroke used to say that the restraining orders to the +Duke of Ormond were proposed in the cabinet council, in the queen's +presence, by the Earl of Oxford, who had not communicated his +intention to the rest of the ministers; and that Lord Bolingbroke was +on the point of giving his opinion against it, when the queen, without +suffering the matter to be debated, directed these orders to be sent, +and broke up the council. This story was told by the late Lord +Bolingbroke to my father." Note by Lord Hardwicke on Burnet (Oxf. +edit. vi. 119). The noble annotator has given us the same anecdote in +the _Hardwicke State Papers_, ii. 482; but with this variance, that +Lord Bolingbroke there ascribes the orders to the queen herself, +though he conjectured them to have proceeded from Lord Oxford. + +[343] _Parl. Hist._ vii. 292. The apprehension that parliament, having +taken this step, might go on still farther to protract its own +duration, was not quite idle. We find from Coxe's _Memoirs of +Walpole_, ii. 217, that in 1720, when the first septennial House of +Commons had nearly run its term, there was a project of once more +prolonging its life. + +[344] _Parl. Hist._ vii. 589. + +[345] The arguments on this side are urged by Addison, in the _Old +Whig_; and by the author of a tract, entitled "Six Questions Stated +and Answered." + +[346] The speeches of Walpole and others, in the Parliamentary +Debates, contain the whole force of the arguments against the peerage +bill. Steele in the _Plebeian_ opposed his old friend and coadjutor, +Addison, who forgot a little in party and controversy their ancient +friendship. + +Lord Sunderland held out, by way of inducements to the bill, that the +Lords would part with _scandalum magnatum_, and permit the Commons to +administer an oath; and that the king would give up the prerogative of +pardoning after an impeachment. Coxe's _Walpole_, ii. 172. Mere +trifles, in comparison with the innovations projected. + +[347] The letters in Coxe's _Memoirs of Walpole_, vol. ii., abundantly +show the German nationality, the impolicy and neglect of his duties, +the rapacity and petty selfishness of George I. The whigs were much +dissatisfied; but fear of losing their places made them his slaves. +Nothing can be more demonstrable than that the king's character was +the main cause of preserving jacobitism, as that of his competitor was +of weakening it. + +The habeas corpus was several times suspended in this reign, as it had +been in that of William. Though the perpetual conspiracies of the +jacobites afforded a sufficient apology for this measure, it was +invidiously held up as inconsistent with a government which professed +to stand on the principles of liberty. _Parl. Hist._ v. 153, 267, 604; +vii. 276; viii. 38. But some of these suspensions were too long, +especially the last, from October 1722 to October 1723. Sir Joseph +Jekyll, with his usual zeal for liberty, moved to reduce the time to +six months. + +[348] "It was first settled by a verbal agreement between Archbishop +Sheldon and the Lord Chancellor Clarendon, and tacitly given into by +the clergy in general as a great ease to them in taxations. The first +public act of any kind relating to it was an act of parliament in +1665, by which the clergy were, in common with the laity, charged with +the tax given in that act, and were discharged from the payment of the +subsidies they had granted before in convocation; but in this act of +parliament of 1665 there is an express saving of the right of the +clergy to tax themselves in convocation, if they think fit; but that +has been never done since, nor attempted, as I know of, and the clergy +have been constantly from that time charged with laity in all public +aids to the Crown by the House of Commons. In consequence of this (but +from what period I cannot say), without the intervention of any +particular law for it, except what I shall mention presently, the +clergy (who are not lords of parliament) have assumed, and without any +objection enjoyed, the privilege of voting in the election of members +of the House of Commons, in virtue of their ecclesiastical freeholds. +This has constantly been practised from the time it first began; there +are two acts of parliament which suppose it to be now a right. The +acts are 10 Anne, c. 23; 18 Geo. II. c. 18. Gibson, Bishop of London, +said to me, that this (the taxation of the clergy out of convocation) +was the greatest alteration in the constitution ever made without an +express law." Speaker Onslow's note on Burnet (Oxf. edit. iv. 508). + +[349] The first authority I have observed for this pretension is an +address of the House of Lords (19 Nov. 1675) to the throne, for the +frequent meeting of the convocation, and that they do make to the king +such representations as may be for the safety of the religion +established. Lords' Journals. This address was renewed February 22, +1677. But what took place in consequence I am not apprised. It shows, +however, some degree of dissatisfaction on the part of the bishops, +who must be presumed to have set forward these addresses, at the +virtual annihilation of their synod which naturally followed from its +relinquishment of self-taxation. + +[350] Kennet, 799, 842; Burnet, 280. This assembly had been suffered +to sit, probably, in consequence of the tory maxims which the ministry +of that year professed. + +[351] Wilkins's _Concilia_, iv.; Burnet, _passim_; Boyer's _Life of +Queen Anne_, 225; Somerville, 82, 124. + +[352] The lower house of convocation, in the late reign, among their +other vagaries, had requested "that some synodical notice might be +taken of the dishonour done to the church by a sermon preached by Mr. +Benjamin Hoadley at St. Lawrence Jewry, Sept. 29, 1705, containing +positions contrary to the doctrine of the church, expressed in the +first and second parts of the homily against disobedience and wilful +rebellion." Wilkins, iv. 634. + +[353] These qualities are so apparent, that after turning over some +forty or fifty tracts, and consuming a good many hours on the +Bangorian controversy, I should find some difficulty in stating with +precision the propositions in dispute. It is, however, evident that a +dislike, not perhaps exactly to the house of Brunswick, but to the +tenor of George I.'s administration, and to Hoadley himself as an +eminent advocate for it, who had been rewarded accordingly, was at the +bottom a leading motive with most of the church party; some of whom, +such as Hare, though originally of a whig connection, might have had +disappointments to exasperate them. + +There was nothing whatever in Hoadley's sermon injurious to the +established endowments and privileges, nor to the discipline and +government, of the English church, even in theory. If this had been +the case, he might be reproached with some inconsistency in becoming +so large a partaker of her honours and emoluments. He even admitted +the usefulness of censures for open immoralities, though denying all +church authority to oblige any one to external communion, or to pass +any sentence which should determine the condition of men with respect +to the favour or displeasure of God. Hoadley's Works, ii. 465, 493. +Another great question in this controversy was that of religious +liberty, as a civil right, which the convocation explicitly denied. +And another related to the much debated exercise of private judgment +in religion, which, as one party meant virtually to take away, so the +other perhaps unreasonably exaggerated. Some other disputes arose in +the course of the combat, particularly the delicate problem of the +value of sincerity as a plea for material errors. + +[354] Tindal, 539. + +[355] _Parl. Hist._ vi. 362. + +[356] 10 Anne, c. 2. + +[357] 12 Anne, c. 7; _Parl. Hist._ vi. 1349. The schism act, according +to Lockhart, was promoted by Bolingbroke, in order to gratify the high +tories, and to put Lord Oxford under the necessity of declaring +himself one way or other. "Though the Earl of Oxford voted for it +himself, he concurred with those who endeavoured to restrain some +parts which they reckoned too severe; and his friends in both houses, +particularly his brother auditor Harley, spoke and voted against it +very earnestly."--P. 462. + +[358] 5 Geo. I. c. 4. The whigs out of power, among whom was Walpole, +factiously and inconsistently opposed the repeal of the schism act, so +that it passed with much difficulty. _Parl. Hist._ vii. 569. + +[359] The first act of this kind appears to have been in 1727. 1 Geo. +II. c. 23. It was repeated next year, intermitted the next, and +afterwards renewed in every year of that reign except the fifth, the +seventeenth, the twenty-second, the twenty-third, the twenty-sixth, +and the thirtieth. Whether these occasional interruptions were +intended to prevent the nonconformists from relying upon it, or were +caused by some accidental circumstance, must be left to conjecture. I +believe that the renewal has been regular every year since the +accession of George III. It is to be remembered, that the present work +was first published before the repeal of the test act in 1828. + +[360] We find in Gutch's _Collectanea Curiosa_, vol. i. p. 53, a plan, +ascribed to Lord Chancellor Macclesfield, for taking away the election +of heads of colleges from the fellows, and vesting the nomination in +the great officers of state, in order to cure the disaffection and +want of discipline which was justly complained of. This remedy would +have been perhaps the substitution of a permanent for a temporary +evil. It appears also that Archbishop Wake wanted to have had a bill, +in 1716, for asserting the royal supremacy, and better regulating the +clergy of the two universities (Coxe's _Walpole_, ii. 122); but I do +not know that the precise nature of this is anywhere mentioned. I can +scarcely quote Amherst's _Terrae Filius_ as authority; it is a very +clever, though rather libellous, invective against the university of +Oxford at that time; but from internal evidence, as well as the +confirmation which better authorities afford it, I have no doubt that +it contains much truth. + +Those who have looked much at the ephemeral literature of these two +reigns must be aware of many publications fixing the charge of +prevalent disaffection on this university, down to the death of George +II.; and Dr. King, the famous jacobite master of St. Mary Hall, admits +that some were left to reproach him for apostasy in going to court on +the accession of the late king in 1760. The general reader will +remember the _Isis_ by Mason, and the _Triumph of Isis_ by Warton; the +one a severe invective, the other an indignant vindication; but in +this instance, notwithstanding the advantages which satire is supposed +to have over panegyric, we must award the laurel to the worse cause, +and, what is more extraordinary, to the worse poet. + +[361] Layer, who suffered on account of this plot, had accused several +peers, among others Lord Cowper, who complained to the house of the +publication of his name; and indeed, though he was at that time +strongly in opposition to the court, the charge seems wholly +incredible. Lord Strafford, however, was probably guilty; Lords North +and Orrery certainly so. _Parl. Hist._ viii. 203. There is even ground +to suspect that Sunderland, to use Tindal's words, "in the latter part +of his life had entered into correspondencies and designs, which would +have been fatal to himself or to the public."--P. 657. This is +mentioned by Coxe, i. 165; and certainly confirmed by Lockhart, ii. +68, 70. But the reader will hardly give credit to such a story as +Horace Walpole has told, that he coolly consulted Sir Robert, his +political rival, as to the part they should take on the king's death. +Lord Orford's Works, iv. 287. + +[362] _State Trials_, xvi. 324; _Parl. Hist._ viii. 195 _et post_. +Most of the bishops voted against their restless brother; and Willis, +Bishop of Salisbury, made a very good but rather too acrimonious a +speech on the bill. _Id._ 298. Hoadley, who was no orator, published +two letters in the newspaper, signed "Britannicus," in answer to +Atterbury's defence; which, after all that had passed, he might better +have spared. Atterbury's own speech is certainly below his fame, +especially the peroration. _Id._ 267. + +No one, I presume, will affect to doubt the reality of Atterbury's +connections with the Stuart family, either before his attainder or +during his exile. The proofs of the latter were published by Lord +Hailes in 1768, and may be found also in Nicholls's edition of +Atterbury's _Correspondence_, i. 148. Additional evidence is furnished +by the _Lockhart Papers_, vol. ii. _passim_. + +[363] The Stuart papers obtained lately from Rome, and now in his +majesty's possession, are said to furnish copious evidence of the +jacobite intrigues, and to affect some persons not hitherto suspected. +We have reason to hope that they will not be long withheld from the +public, every motive for concealment being wholly at an end. + +It is said that there were not less than fifty jacobites in the +parliament of 1728. Coxe, ii. 294. + +[364] The tories, it is observed in the MS. journal of Mr. Yorke +(second Earl of Hardwicke), showed no sign of affection to the +government at the time when the invasion was expected in 1743, but +treated it all with indifference. _Parl. Hist._ xiii. 668. In fact a +disgraceful apathy pervaded the nation; and according to a letter from +Mr. Fox to Mr. Winnington in 1745, which I only quote from +recollection, it seemed perfectly uncertain, from this general +passiveness, whether the revolution might not be suddenly brought +about. Yet very few comparatively, I am persuaded, had the slightest +attachment or prejudice in favour of the house of Stuart; but the +continual absence from England, and the Hanoverian predilections of +the two Georges, the feebleness and factiousness of their +administration, and of public men in general, and an indefinite +opinion of misgovernment, raised through the press, though certainly +without oppression or arbitrary acts, had gradually alienated the mass +of the nation. But this would not lead men to expose their lives and +fortunes; and hence the people of England, a thing almost incredible, +lay quiet and nearly unconcerned, while the little army of Highlanders +came every day nearer to the capital. It is absurd, however, to +suppose that they could have been really successful by marching +onward; though their defeat might have been more glorious at Finchley +than at Culloden. + +[365] See _Parl. Hist._ xiii. 1244; and other proofs might be brought +from the same work, as well as from miscellaneous authorities of the +age of George II. + +[366] See in the _Lockhart Papers_, ii. 565, a curious relation of +Charles Edward's behaviour in refusing to quit France after the peace +of Aix-la-Chapelle. It was so insolent and absurd that the government +was provoked to arrest him at the opera, and literally to order him to +be bound hand and foot; an outrage which even his preposterous conduct +could hardly excuse. + +Dr. King was in correspondence with this prince for some years after +the latter's foolish, though courageous, visit to London in September +1750; which he left again in five days, on finding himself deceived by +some sanguine friends. King says he was wholly ignorant of our history +and constitution. "I never heard him express any noble or benevolent +sentiment, the certain indications of a great soul and good heart; or +discover any sorrow or compassion for the misfortune of so many worthy +men who had suffered in his cause." _Anecdotes of his own Times_, p. +201. He goes on to charge him with love of money and other faults. But +his great folly in keeping a mistress, Mrs. Walkinshaw, whose sister +was housekeeper at Leicester House, alarmed the jacobites. "These were +all men of fortune and distinction, and many of them persons of the +first quality, who attached themselves to the P. as to a person who +they imagined might be made the instrument of saving their country. +They were sensible that by Walpole's administration the English +government was become a system of corruption; and that Walpole's +successors, who pursued his plan without any of his abilities, had +reduced us to such a deplorable situation that our commercial interest +was sinking, our colonies in danger of being lost, and Great Britain, +which, if her powers were properly exerted, as they were afterwards in +Mr. Pitt's administration, was able to give laws to other nations, was +become the contempt of all Europe."--P. 208. This is in truth the +secret of the continuance of jacobitism. But possibly that party were +not sorry to find a pretext for breaking off so hopeless a connection, +which they seem to have done about 1755. Mr. Pitt's great successes +reconciled them to the administration; and his liberal conduct brought +back those who had been disgusted by an exclusive policy. On the +accession of a new king they flocked to St. James's; and probably +scarcely one person of the rank of a gentleman, south of the Tweed, +was found to dispute the right of the house of Brunswick after 1760. +Dr. King himself, it may be observed, laughs at the old passive +obedience doctrine (page 193); so far was he from being a jacobite of +that school. + +A few nonjuring congregations lingered on far into the reign of George +III., presided over by the successors of some bishops whom Lloyd of +Norwich, the last of those deprived at the revolution, had consecrated +in order to keep up the schism. A list of these is given in D'Oyly's +_Life of Sancroft_, vol. ii. p. 34, whence it would appear that the +last of them died in 1779. I can trace the line a little farther: a +bishop of that separation, named Cartwright, resided at Shrewsbury in +1793, carrying on the business of a surgeon. _State Trials_, xxiii. +1073. I have heard of similar congregations in the west of England +still later. He had, however, become a very loyal subject to King +George: a singular proof of that tenacity of life by which religious +sects, after dwindling down through neglect, excel frogs and +tortoises; and that, even when they have become almost equally +cold-blooded! + +[367] _Parl. Hist._ viii. 904. + +[368] _Id._ vii. 536. + +[369] 8 Geo. 2, c. 30; _Parl. Hist._ viii. 883. + +[370] The military having been called in to quell an alleged riot at +Westminster election in 1741, it was resolved (Dec. 22nd) "that the +presence of a regular body of armed soldiers at an election of members +to serve in parliament is a high infringement of the liberties of the +subject, a manifest violation of the freedom of elections, and an open +defiance of the laws and constitution of this kingdom." The persons +concerned in this, having been ordered to attend the house, received +on their knees a very severe reprimand from the speaker. _Parl. Hist._ +ix. 326. Upon some occasion, the circumstances of which I do not +recollect, Chief Justice Willis uttered some laudable sentiments as to +the subordination of military power. + +[371] Lord Hardwicke threw out the militia bill in 1756, thinking some +of its clauses rather too republican, and, in fact, being adverse to +the scheme. _Parl. Hist._ xv. 704; H. Walpole's _Memoirs_, ii. 45; +Coxe's _Memoirs of Lord Walpole_, 450. + +[372] By the act of 6 Anne, c. 7, all persons holding pensions from +the Crown during pleasure were made incapable of sitting in the House +of Commons; which was extended by 1 Geo. I. c. 56, to those who held +them for any term of years. But the difficulty was to ascertain the +fact; the government refusing information. Mr. Sandys, accordingly +proposed a bill in 1730, by which every member of the Commons was to +take an oath that he did not hold any such pension, and that, in case +of accepting one, he would disclose it to the house within fourteen +days. This was carried by a small majority through the Commons, but +rejected in the other house; which happened again in 1734 and in 1740. +_Parl. Hist._ viii. 789; ix. 369; xi. 510. The king, in an angry note +to Lord Townshend, on the first occasion, calls it "this villainous +bill." Coxe's _Walpole_, ii. 537, 673. A bill of the same gentleman to +limit the number of placemen in the house had so far worse success, +that it did not reach the Serbonian bog. _Parl. Hist._ xi. 328, Bishop +Sherlock made a speech against the prevention of corrupt practices by +the pension bill, which, whether justly or not, excited much +indignation, and even gave rise to the proposal of a bill for putting +an end to the translation of bishops. _Id._ viii. 847. + +[373] 25 Geo. 2, c. 22. The king came very reluctantly into this +measure: in the preceding session of 1742, Sandys, now become +chancellor of the exchequer, had opposed it, though originally his +own; alleging, in no very parliamentary manner, that the new ministry +had not yet been able to remove his majesty's prejudices. _Parl. +Hist._ xii. 896. + +[374] Mr. Fox declared to the Duke of Newcastle, when the office of +secretary of state, and what was called the management of the House of +Commons, was offered to him, "that he never desired to touch a penny +of the secret service money, or to know the disposition of it farther +than was necessary to _enable him to speak to the members without +being ridiculous_." Dodington's _Diary_, 15th March 1754. H. Walpole +confirms this in nearly the same words. _Mem. of Last Ten Years_, i. +332. + +[375] In Coxe's _Memoirs of Sir R. Walpole_, iii. 609, we have the +draught, by that minister, of an intended vindication of himself after +his retirement from office, in order to show the impossibility of +misapplying public money, which, however, he does not show; and his +elaborate account of the method by which payments are made out of the +exchequer, though valuable in some respects, seems rather intended to +lead aside the unpractised reader. + +[376] This secret committee were checked at every step for want of +sufficient powers. It is absurd to assert, like Mr. Coxe, that they +advanced accusations which they could not prove, when the means of +proof were withheld. Scrope and Paxton, the one secretary, the other +solicitor, to the treasury, being examined about very large sums +traced to their hands, and other matters, refused to answer questions +that might criminate themselves; and a bill to indemnify evidence was +lost in the upper house. _Parl. Hist._ xii. 625 _et post_. + +[377] See vol. i. pp. 254, 255. + +[378] _Parl. Hist._ vi. 1265. Walpole says, in speaking for Steele, +"the liberty of the press is unrestrained; how then shall a part of +the legislature dare to punish that as a crime, which is not declared +to be so by any law framed by the whole?" + +[379] Vol. i. p. 250. + +[380] The instances are so numerous, that to select a few would +perhaps give an inadequate notion of the vast extension which +privilege received. In fact, hardly anything could be done +disagreeable to a member, of which he might inform the house, and +cause it to be punished. + +[381] 12 Will. 3, ch. 3. + +[382] Journals, 11th Feb. It had been originally proposed, that the +member making the complaint should pay the party's costs and expenses, +which was amended, I presume, in consequence of some doubt as to the +power of the house to enforce it. + +[383] 10 G. 3, c. 50. + +[384] Resolved, That whatever ill consequences may arise from the so +long deferring the supplies for the year's service, are to be +attributed to the fatal counsel of putting off the meeting of a +parliament so long, and to unnecessary delays of the House of Commons. +Lords' Journals, 23rd June 1701. The Commons had previously come to a +vote, that all the ill consequences which may at this time attend the +delay of the supplies granted by the Commons for the preserving the +public peace, and maintaining the balance of Europe, are to be imputed +to those who, to procure an indemnity for their own enormous crimes, +have used their utmost endeavours to make a breach between the two +houses. Commons' Journals, June 20th. + +[385] Journals, 8th May; _Parl. Hist._ v. 1250; Ralph, 947. This +historian, who generally affects to take the popular side, inveighs +against this petition, because the tories had a majority in the +Commons. His partiality, arising out of a dislike to the king, is very +manifest throughout the second volume. He is forced to admit +afterwards, that the house disgusted the people by their votes on this +occasion. P. 976. + +[386] _History of the Kentish Petition_; _Somers Tracts_, xi. 242; +_Legion's Paper_; _Id._ 264; _Vindication of the Rights of the +Commons_ (either by Harley or Sir Humphrey Mackworth); _Id._ 276. This +contains in many respects constitutional principles; but the author +holds very strong language about the right of petitioning. After +quoting the statute of Charles II. against tumults on pretence of +presenting petitions, he says: "By this statute it may be observed, +that not only the number of persons is restrained, but the occasion +also for which they may petition; which is for the alteration of +matters established in church or state, for want whereof some +inconvenience may arise to that county from which the petition shall +be brought. For it is plain by the express words and meaning of that +statute that the grievance or matter of the petition must arise in the +same county as the petition itself. They may indeed petition the king +for a parliament to redress their grievances; and they may petition +that parliament to make one law that is advantageous, and repeal +another that is prejudicial to the trade or interest of that county; +but they have no power by this statute, nor by the constitution of the +English government, to direct the parliament in the general +proceedings concerning the whole kingdom; for the law declares that a +general consultation of all the wise representatives of parliament is +more for the safety of England than the hasty advice of a number of +petitioners of a private county, of a grand jury, or of a few justices +of the peace, who seldom have a true state of the case represented to +them."--P. 313. + +These are certainly what must appear in the present day very strange +limitations of the subject's right to petition either house of +parliament. But it is really true that such a right was not generally +recognised, nor frequently exercised, in so large an extent as is now +held unquestionable. We may search whole volumes of the journals, +while the most animating topics were in discussion, without finding a +single instance of such an interposition of the constituent with the +representative body. In this particular case of the Kentish petition, +the words in the resolution, that it tended to destroy the +constitution of parliament and subvert the established government, +could be founded on no pretence but its unusual interference with the +counsels of the legislature. With this exception, I am not aware +(stating this, however, with some diffidence) of any merely political +petition before the Septennial bill in 1717, against which several +were presented from corporate towns; one of which was rejected on +account of language that the house thought indecent; and as to these +it may be observed, that towns returning members to parliament had a +particular concern in the measure before the house. They relate, +however, no doubt, to general policy, and seem to establish a popular +principle which stood on little authority. I do not of course include +the petitions to the long parliament in 1640, nor one addressed to the +Convention, in 1689, from the inhabitants of London and Westminster, +pressing their declaration of William and Mary; both in times too +critical to furnish regular precedents. But as the popular principles +of government grew more established, the right of petitioning on +general grounds seems to have been better recognised; and instances +may be found, during the administration of Sir Robert Walpole, though +still by no means frequent. _Parl. Hist._ xii. 119. The city of London +presented a petition against the bill for naturalisation of the Jews, +in 1753, as being derogatory to the Christian religion as well as +detrimental to trade. _Id._ xiv. 1417. It caused, however, some +animadversion; for Mr. Northey, in the debate next session on the +proposal to repeal this bill, alluding to this very petition, and to +the comments Mr. Pelham made on it, as "so like the famous Kentish +petition that if they had been treated in the same manner it would +have been what they deserved," observes in reply, that the "right of +petitioning either the king or the parliament in a decent and +submissive manner, and without any riotous appearance against anything +they think may affect their religion and liberties, will never, I +hope, be taken from the subject." _Id._ xv. 149; see also 376. And it +is very remarkable that notwithstanding the violent clamour excited by +that unfortunate statute, no petitions for its repeal are to be found +in the journals. They are equally silent with regard to the marriage +act, another topic of popular obloquy. Some petitions appear to have +been presented against the bill for naturalisation of foreign +protestants; but probably on the ground of its injurious effect on the +parties themselves. The great multiplication of petitions on matters +wholly unconnected with particular interests cannot, I believe, be +traced higher than those for the abolition of the slave trade in 1787; +though a few were presented for reform about the end of the American +war, which would undoubtedly have been rejected with indignation in +any earlier stage of our constitution. It may be remarked also that +petitions against bills imposing duties are not received, probably on +the principle that they are intended for the general interests, though +affecting the parties who thus complain of them. Hatsell, iii. 200. + +The convocation of public meetings for the debate of political +questions, as preparatory to such addresses or petitions, is still +less according to the practice and precedents of our ancestors; nor +does it appear that the sheriffs or other magistrates are more +invested with a right of convening or presiding in assemblies of this +nature than any other persons; though, within the bounds of the public +peace, it would not perhaps be contended that they have ever been +unlawful. But that their origin can be distinctly traced higher than +the year 1769, I am not prepared to assert. It will of course be +understood, that this note is merely historical, and without reference +to the expediency of that change in our constitutional theory which it +illustrates. + +[387] _State Trials_, xiv. 849. + +[388] _Parl. Hist._ vi. 225 _et post_; _State Trials_, xiv. 695 _et +post_. + +[389] _Parl. Hist._ xiv. 888 _et post_, 1063; Walpole's _Memoirs of +the last Ten Years of George II._, i. 15 _et post_. + +[390] Journals, vii. 9th July 1725. + +[391] Commons' Journals, 25th Oct. 1689. + +[392] _Id._ Dec. 5. + +[393] _Parl. Hist._ vii. 803. + +[394] Lords' Journals, 10th Jan. 1702; _Parl. Hist._ vi. 21. + +[395] Hargrave's _Juridical Arguments_, vol. i. p. 1, etc. + +[396] _State Trials_, vi. 1369; 1 Modern Reports, 159. + +[397] _Id._, xii. 822; T. Jones, Reports, 208. + +[398] Journals, 10th, 12th, 19th July 1689. + +[399] _State Trials_, xiv. 849. + +[400] _Id._, viii. 30. + +[401] This is very elaborately and dispassionately argued by Mr. +Hargrave in his _Juridical Arguments_, above cited; also vol. ii. p. +183. "I understand it," he says, "to be clearly part of the law and +custom of parliament that each house of parliament may inquire into +and imprison for breaches of privilege." But this he thinks to be +limited by law; and after allowing it clearly in cases of obstruction, +arrest, assault, etc., on members, admits also that "the judicative +power as to writing, speaking, or publishing, of gross reflections +upon the whole parliament or upon either house, though perhaps +originally questionable, seems now of too long a standing and of too +much frequency in practice to be well counteracted." But after +mentioning the opinions of the judges in Crosby's case, Mr. H. +observes: "I am myself far from being convinced that commitment for +contempts by a house of parliament, or by the highest court of +judicature in Westminster Hall, either ought to be, or are thus wholly +privileged from all examination and appeal." + +[402] Mr. Justice Gould, in Crosby's case, as reported by Wilson, +observes: "It is true this court did, in the instance alluded to by +the counsel at the bar (Wilkes's case, 2 Wilson, 151), determine upon +the privilege of parliament in the case of a libel; but then that +privilege was promulged and known; it existed in records and +law-books, and was allowed by parliament itself. But _even in that +case we now know that we were mistaken; for the House of Commons have +since determined, that privilege does not extend to matters of +libel_." It appears, therefore, that Mr. Justice Gould thought a +declaration of the House of Commons was better authority than a +decision of the court of common pleas, as to a privilege which, as he +says, existed in records and law-books. + +[403] "I am far from subscribing to all the latitude of the doctrine +of attachments for contempts of the king's courts of Westminster, +especially the King's Bench, as it is sometimes stated, and it has +been sometimes practised." Hargrave, ii. 213. + +"The principle upon which attachments issue for libels on courts is of +a more enlarged and important nature: it is _to keep a blaze of glory +around them_, and to deter people from attempting to render them +contemptible in the eyes of the people." Wilmot's _Opinions and +Judgments_, p. 270. Yet the king, who seems as much entitled to this +blaze of glory as his judges, is driven to the verdict of a jury +before the most libellous insult on him can be punished. + +[404] Hargrave, _ubi supra_. + +[405] This effect of continual new statutes is well pointed out in a +speech ascribed to Sir William Wyndham in 1734: "The learned gentleman +spoke (he says) of the prerogative of the Crown, and asked us if it +had lately been extended beyond the bounds prescribed to it by law. +Sir, I will not say that there have been lately any attempts to extend +it beyond the bounds prescribed by law; but I will say that these +bounds have been of late so vastly enlarged that there seems to be no +great occasion for any such attempt. What are the many penal laws made +within these forty years, but so many extensions of the prerogative of +the Crown, and as many diminutions of the liberty of the subject? And +whatever the necessity was that brought us into the enacting of such +laws, it was a fatal necessity; it has greatly added to the power of +the Crown, and particular care ought to be taken not to throw any more +weight into that scale." _Parl. Hist._ ix. 463. + +Among the modern statutes which have strengthened the hands of the +executive power, we should mention the riot act (1 Geo. I. stat. 2, c. +5), whereby all persons tumultuously assembled to the disturbance of +the public peace, and not dispersing within one hour after +proclamation made by a single magistrate, are made guilty of a capital +felony. I am by no means controverting the expediency of this law; +but, especially when combined with the aid of a military force, it is +surely a compensation for much that may seem to have been thrown into +the popular scale. + +[406] 9 Geo. 2, c. 35, sect. 10, 13; _Parl. Hist._ ix. 1229. I quote +this as I find it: but probably the expressions are not quite correct; +for the reasoning is not so. + +[407] Coxe's _Walpole_, i. 296; H. Walpole's Works, iv. 476. The +former, however, seems to rest on H. Walpole's verbal communication, +whose want of accuracy, or veracity, or both, is so palpable that no +great stress can be laid on his testimony. I believe, however, that +the fact of George I. and his minister conversing in Latin may be +proved on other authority. + +[408] H. Walpole's _Memoirs of the last Ten Years_; Lord Waldegrave's +_Memoirs_. In this well written little book, the character of George +II. in reference to his constitutional position, is thus delicately +drawn: "He has more knowledge of foreign affairs than most of his +ministers, and has good general notions of the constitution, strength, +and interest of this country; but, being past thirty when the Hanover +succession took place, and having since experienced the violence of +party, the injustice of popular clamour, the corruption of +parliaments, and the selfish motives of pretended patriots, it is not +surprising that he should have contracted some prejudices in favour of +those governments where the royal authority is under less restraint. +Yet prudence has so far prevailed over these prejudices, that they +have never influenced his conduct. On the contrary, many laws have +been enacted in favour of public liberty; and in the course of a long +reign there has not been a single attempt to extend the prerogative of +the Crown beyond its proper limits. He has as much personal bravery as +any man, though his political courage seems somewhat problematical; +however, it is a fault on the right side; for had he always been as +firm and undaunted in the closet as he showed himself at Oudenarde and +Dettingen, he might not have proved quite so good a king in this +limited monarchy,"--P. 5. This was written in 1757. + +The real tories, those I mean who adhered to the principles expressed +by that name, thought the constitutional prerogative of the Crown +impaired by a conspiracy of its servants. Their notions are expressed +in some "Letters on the English Nation," published about 1756, under +the name of Battista Angeloni, by Dr. Shebbeare, once a jacobite, and +still so bitter an enemy of William III. and George I. that he stood +in the pillory, not long afterwards, for a libel on those princes +(among other things); on which Horace Walpole justly animadverts, as a +stretch of the law by Lord Mansfield destructive of all historical +truth. _Memoirs of the last Ten Years_, ii. 328. Shebbeare, however, +was afterwards pensioned, along with Johnson, by Lord Bute, and at the +time when these letters were written, may possibly have been in the +Leicester House interest. Certain it is, that the self-interested +cabal who belonged to that little court endeavoured too successfully +to persuade its chief and her son that the Crown was reduced to a +state of vassalage, from which it ought to be emancipated; and the +government of the Duke of Newcastle, as strong in party connection as +it was contemptible in ability and reputation, afforded them no bad +argument. The consequences are well known, but do not enter into the +plan of this work. + +[409] Many proofs of this occur in the correspondence published by Mr. +Coxe. Thus Horace Walpole writing to his brother Sir Robert, in 1739, +says: "King William had no other object but the liberties and balance +of Europe; but, good God! what is the case now? I will tell you in +confidence; little, low, partial, electoral notions are able to stop +or confound the best conducted project for the public." _Memoirs of +Sir R. Walpole_, iii. 535. The Walpoles had, some years before, +disapproved the policy of Lord Townshend on account of his favouring +the king's Hanoverian prejudices. _Id._ i. 334. And, in the preceding +reign, both these whig leaders were extremely disgusted with the +Germanism and continual absence of George I. (_Id._ ii. 116, 297), +though first Townshend, and afterwards Walpole, according to the +necessity, or supposed necessity, which controls statesmen (that is, +the fear of losing their places), became in appearance the passive +instruments of royal pleasure. + +It is now, however, known that George II. had been induced by Walpole +to come into a scheme, by which Hanover, after his decease, was to be +separated from England. It stands on the indisputable authority of +Speaker Onslow. "A little while before Sir Robert Walpole's fall (and +as a popular act to save himself, for he went very unwillingly out of +his offices and power), he took me one day aside, and said, 'What will +you say, speaker, if this hand of mine shall bring a message from the +king to the House of Commons, declaring his consent to having any of +his family, after his death, to be made, by act of parliament, +incapable of inheriting and enjoying the crown, and possessing the +electoral dominions at the same time?' My answer was, 'Sir, it will be +as a message from heaven.' He replied, 'It will be done.' But it was +not done; and I have good reason to believe, it would have been +opposed, and rejected at that time, because it came from him, and by +the means of those who had always been most clamorous for it; and thus +perhaps the opportunity was lost: when will it come again? It was said +that the prince at that juncture would have consented to it, if he +could have had the credit and popularity of the measure, and that some +of his friends were to have moved it in parliament, but that the +design at St. James's prevented it. Notwithstanding all this, I have +had some thoughts that neither court ever really intended the thing +itself; but that it came on and went off, by a jealousy of each other +in it, and that both were equally pleased that it did so, from an +equal fondness (very natural) for their own native country." _Notes on +Burnet_ (iv. 490, Oxf. edit.). This story has been told before, but +not in such a manner as to preclude doubt of its authenticity. + +[410] A bill was brought in for this purpose in 1712, which Swift, in +his _History of the Last Four Years_, who never printed anything with +his name, naturally blames. It miscarried, probably on account of this +provision. _Parl. Hist._ vi. 1141. But the queen, on opening the +session, in April 1713, recommended some new law to check the +licentiousness of the press. _Id._ 1173. Nothing, however, was done in +consequence. + +[411] Bolingbroke's letter to the _Examiner_, in 1710, excited so much +attention that it was answered by Lord Cowper, then chancellor, in a +letter to the _Tatler_ (_Somers Tracts_, xiii. 75), where Sir Walter +Scott justly observes, that the fact of two such statesmen becoming +the correspondents of periodical publications shows the influence they +must have acquired over the public mind. + +[412] It was resolved, _nem. con._, Feb. 26th, 1729, That it is an +indignity to, and a breach of the privilege of, this house, for any +person to presume to give, in written or printed newspapers, any +account or minutes of the debates, or other proceedings of this house +or of any committee thereof; and that upon discovery of the authors, +etc., this house will proceed against the offenders with the utmost +severity. _Parl. Hist._ viii. 683. There are former resolutions to the +same effect. The speaker having himself brought the subject under +consideration some years afterwards, in 1738, the resolution was +repeated in nearly the same words, but after a debate wherein, though +no one undertook to defend the practice, the danger of impairing the +liberty of the press was more insisted upon than would formerly have +been usual; and Sir Robert Walpole took credit to himself, justly +enough, for respecting it more than his predecessors. _Id._ x. 800; +Coxe's _Walpole_, i. 572. Edward Cave, the well-known editor of the +_Gentleman's Magazine_, and the publisher of another magazine, was +brought to the bar, April 30th, 1747, for publishing the house's +debates; when the former denied that he retained any person in pay to +make the speeches, and after expressing his contrition was discharged +on payment of fees. _Id._ xiv. 57. + +[413] Malthus, _Principles of Political Economy_ (1820), p. 279. + +[414] Macpherson (or Anderson), _Hist. of Commerce_; Chalmers's +_Estimate of Strength of Great Britain_; Sinclair's _Hist. of +Revenue_, cum multis aliis. + +[415] Tindal, apud _Parl. Hist._ xiv. 66. I have read the same in +other books, but know not at present where to search for the passages. +Hogarth's pictures of the election are evidence to the corruption in +his time, so also are some of Smollett's novels. Addison, Swift, and +Pope would not have neglected to lash this vice if it had been glaring +in their age; which shows that the change took place about the time I +have mentioned. + +[416] 9 Anne, c. 5. A bill for this purpose had passed the Commons in +1696; the city of London and several other places petitioning against +it. Journals, Nov. 21, etc. The house refused to let some of these +petitions be read; I suppose on the ground that they related to a +matter of general policy. These towns, however, had a very fair +pretext for alleging that they were interested; and in fact a rider +was added to the bill, that any merchant might serve for a place where +he should be himself a voter, on making oath that he was worth L5000. +_Id._ Dec. 19. + +[417] 33 G. II. c. 20. + + + + +CHAPTER XVII + +ON THE CONSTITUTION OF SCOTLAND--INTRODUCTION OF THE FEUDAL SYSTEM + + +It is not very profitable to enquire into the constitutional +antiquities of a country which furnishes no authentic historian, nor +laws, nor charters, to guide our research, as is the case with +Scotland before the twelfth century. The latest and most laborious of +her antiquaries appears to have proved that her institutions were +wholly Celtic until that era, and greatly similar to those of +Ireland.[418] A total, though probably gradual, change must therefore +have taken place in the next age, brought about by means which have +not been satisfactorily explained. The Crown became strictly +hereditary, the governors of districts took the appellation of earls, +the whole kingdom was subjected to a feudal tenure, the Anglo-Norman +laws, tribunals, local and municipal magistracies were introduced as +far as the royal influence could prevail; above all, a surprising +number of families, chiefly Norman, but some of Saxon or Flemish +descent, settled upon estates granted by the kings of Scotland, and +became the founders of its aristocracy. It was, as truly as some time +afterwards in Ireland, the encroachment of a Gothic and feudal polity +upon the inferior civilisation of the Celts, though accomplished with +far less resistance, and not quite so slowly. Yet the Highland tribes +long adhered to their ancient usages; nor did the laws of English +origin obtain in some other districts two or three centuries after +their establishment on both sides of the Forth.[419] + +_Scots parliament._--It became almost a necessary consequence from +this adoption of the feudal system, and assimilation to the English +institutions, that the kings of Scotland would have their general +council or parliament upon nearly the same model as that of the +Anglo-Norman sovereigns they so studiously imitated. If the statutes +ascribed to William the Lion, contemporary with our Henry II., are +genuine, they were enacted, as we should expect to find, with the +concurrence of the bishops, abbots, barons, and other good men (probi +homines) of the land; meaning doubtless the inferior tenants in +capite.[420] These laws indeed are questionable, and there is a great +want of unequivocal records till almost the end of the thirteenth +century. The representatives of boroughs are first distinctly +mentioned in 1326, under Robert I.; though some have been of opinion +that vestiges of their appearance in parliament may be traced higher; +but they are not enumerated among the classes present in one held in +1315.[421] In the ensuing reign of David II., the three estates of the +realm are expressly mentioned as the legislative advisers of the +Crown.[422] + +A Scots parliament resembled an English one in the mode of +convocation, in the ranks that composed it, in the enacting powers of +the king, and the necessary consent of the three estates; but differed +in several very important respects. No freeholders, except tenants in +capite, had ever any right of suffrage; which may, not improbably, +have been in some measure owing to the want of that Anglo-Saxon +institution, the county court. These feudal tenants of the Crown came +in person to parliament, as they did in England till the reign of +Henry III., and sat together with the prelates and barons in one +chamber. A prince arose in Scotland in the first part of the fifteenth +century, resembling the English Justinian in his politic regard to +strengthening his own prerogative and to maintaining public order. It +was enacted by a law of James I., in 1427, that the smaller barons and +free tenants "need not to come to parliament, so that of every +sheriffdom there be sent two or more wise men, chosen at the head +court," to represent the rest. These were to elect a speaker, through +whom they were to communicate with the king and other estates.[423] +This was evidently designed as an assimilation to the English House of +Commons. But the statute not being imperative, no regard was paid to +this permission; and it is not till 1587 that we find the +representation of the Scots counties finally established by law; +though one important object of James's policy was never attained, the +different estates of parliament having always voted promiscuously, as +the spiritual and temporal lords in England. + +_Power of the aristocracy._--But no distinction between the national +councils of the two kingdoms was more essential than what appears to +have been introduced into the Scots parliament under David II. In the +year 1367 a parliament having met at Scone, a committee was chosen by +the three estates, who seem to have had full powers delegated to them, +the others returning home on account of the advanced season. The same +was done in one held next year, without any assigned pretext. But in +1369 this committee was chosen only to prepare all matters +determinable in parliament, or fit to be therein treated for the +decision of the three estates on the last day but one of the +session.[424] The former scheme appeared possibly, even to those +careless and unwilling legislators, too complete an abandonment of +their function. But even modified as it was in 1369, it tended to +devolve the whole business of parliament on this elective committee, +subsequently known by the appellation of lords of the articles. It +came at last to be the general practice, though some exceptions to +this rule may be found, that nothing was laid before parliament +without their previous recommendation; and there seems reason to think +that in the first parliament of James I., in 1424, such full powers +were delegated to the committee as had been granted before in 1367 and +1368, and that the three estates never met again to sanction their +resolutions.[425] The preparatory committee is not uniformly mentioned +in the preamble of statutes made during the reign of this prince and +his two next successors; but there may be no reason to infer from +thence that it was not appointed. From the reign of James IV. the +lords of articles are regularly named in the records of every +parliament.[426] + +It is said that a Scots parliament, about the middle of the fifteenth +century, consisted of near one hundred and ninety persons.[427] We do +not find however that more than half this number usually attended. A +list of those present in 1472 gives but fourteen bishops and abbots, +twenty-two earls and barons, thirty-four lairds or lesser tenants in +capite, and eight deputies of boroughs.[428] The royal boroughs +entitled to be represented in parliament were above thirty; but it was +a common usage to choose the deputies of other towns as their +proxies.[429] The great object with them, as well as with the lesser +barons, was to save the cost and trouble of attendance. It appears +indeed that they formed rather an insignificant portion of the +legislative body. They are not named as consenting parties in several +of the statutes of James III.; and it seems that on some occasions +they had not been summoned to parliament, for an act was passed in +1504, "that the commissaries and headsmen of the burghs be warned when +taxes or constitutions are given, to have their advice therein, as one +of the three estates of the realm."[430] This however is an express +recognition of their right, though it might have been set aside by an +irregular exercise of power. + +_Royal influence in parliament._--It was a natural result from the +constitution of a Scots parliament, together with the general state of +society in that kingdom, that its efforts were almost uniformly +directed to augment and invigorate the royal authority. Their statutes +afford a remarkable contrast to those of England in the absence of +provisions against the exorbitances of prerogative.[431] Robertson has +observed that the kings of Scotland, from the time at least of James +I., acted upon a steady system of repressing the aristocracy; and +though this has been called too refined a supposition, and attempts +have been made to explain otherwise their conduct, it seems strange to +deny the operation of a motive so natural, and so readily to be +inferred from their measures. The causes so well pointed out by this +historian, and some that might be added; the defensible nature of +great part of the country; the extensive possessions of some powerful +families; the influence of feudal tenure and Celtic clanship; the +hereditary jurisdiction, hardly controlled, even in theory, by the +supreme tribunals of the Crown; the custom of entering into bonds of +association for mutual defence; the frequent minorities of the +reigning princes; the necessary abandonment of any strict regard to +monarchical supremacy, during the struggle for independence against +England; the election of one great nobleman to the Crown and its +devolution upon another; the residence of the two first of the Stuart +name in their own remote domains; the want of any such effective +counterpoise to the aristocracy as the sovereigns of England possessed +in its yeomanry and commercial towns, placed the kings of Scotland in +a situation which neither for their own nor their people's interest +they could be expected to endure. But an impatience of submitting to +the insolent and encroaching temper of their nobles drove James I. +(before whose time no settled scheme of reviving the royal authority +seems to have been conceived), and his two next descendants into some +courses which, though excused or extenuated by the difficulties of +their position, were rather too precipitate and violent, and redounded +at least to their own destruction. The reign of James IV., from his +accession in 1488 to his unhappy death at Flodden in 1513, was the +first of tolerable prosperity; the Crown having by this time obtained +no inconsiderable strength, and the course of law being somewhat more +established, though the aristocracy were abundantly capable of +withstanding any material encroachment upon their privileges. + +Though subsidies were, of course, occasionally demanded, yet from the +poverty of the realm, and the extensive domains which the Crown +retained, they were much less frequent than in England, and thus one +principal source of difference was removed; nor do we read of any +opposition in parliament to what the Lords of articles thought fit to +propound. Those who disliked the government stood aloof from such +meetings, where the sovereign was in his vigour, and had sometimes +crushed a leader of faction by a sudden stroke of power; confident +that they could better frustrate the execution of laws than their +enactment, and that questions of right and privilege could never be +tried so advantageously as in the field. Hence it is, as I have +already observed, that we must not look to the statute-book of +Scotland for many limitations of monarchy. Even in one of James II., +which enacts that none of the royal domains shall for the future be +alienated, and that the king and his successors shall be sworn to +observe this law, it may be conjectured that a provision rather +derogatory in semblance to the king's dignity was introduced by his +own suggestion, as an additional security against the importunate +solicitations of the aristocracy whom the statute was designed to +restrain.[432] The next reign was the struggle of an imprudent, and, +as far as his means extended, despotic prince, against the spirit of +his subjects. In a parliament of 1487, we find almost a solitary +instance of a statute that appears to have been directed against some +illegal proceedings of the government. It is provided that all civil +suits shall be determined by the ordinary judges, and not before the +king's council.[433] James III. was killed the next year in attempting +to oppose an extensive combination of the rebellious nobility. In the +reign of James IV., the influence of the aristocracy shows itself +rather more in legislation; and two peculiarities deserve notice, in +which, as it is said, the legislative authority of a Scots parliament +was far higher than that of our own. They were not only often +consulted about peace or war, which in some instances was the case in +England, but, at least in the sixteenth century, their approbation +seems to have been necessary.[434] This, though not consonant to our +modern notions, was certainly no more than the genius of the feudal +system and the character of a great deliberative council might lead us +to expect; but a more remarkable singularity was, that what had been +propounded by the lords of articles, and received the ratification of +the three estates, did not require the king's consent to give it +complete validity. Such at least is said to have been the Scots +constitution in the time of James VI.; though we may demand very full +proof of such an anomaly, which the language of their statutes, +expressive of the king's enacting power, by no means leads us to +infer.[435] + +_Judicial power._--The kings of Scotland had always their aula or +curia regis, claiming a supreme judicial authority, at least in some +causes, though it might be difficult to determine its boundaries, or +how far they were respected. They had also bailiffs to administer +justice in their own domains, and sheriffs in every county for the +same purpose, wherever grants of regality did not exclude their +jurisdiction. These regalities were hereditary and territorial; they +extended to the infliction of capital punishment; the lord possessing +them might reclaim or re-pledge (as it was called, from the surety he +was obliged to give that he would himself do justice) any one of his +vassals who was accused before another jurisdiction. The barons, who +also had cognisance of most capital offences, and the royal boroughs, +enjoyed the same privilege. An appeal lay, in civil suits, from the +baron's court to that of the sheriff or lord of regality, and +ultimately to the parliament, or to a certain number of persons to +whom it delegated its authority.[436] + +_Court of Session._--This appellant jurisdiction of parliament, as +well as that of the king's privy council, which was original, came, by +a series of provisions from the year 1425 to 1532, into the hands of a +supreme tribunal thus gradually constituted in its present form, the +court of session. It was composed of fifteen judges, half of whom, +besides the president, were at first churchmen, and soon established +an entire subordination of the local courts in all civil suits. But it +possessed no competence in criminal proceedings; the hereditary +jurisdictions remained unaffected for some ages, though the king's two +justiciaries, replaced afterwards by a court of six judges, went their +circuits even through those counties wherein charters of regality had +been granted. Two remarkable innovations seem to have accompanied, or +to have been not far removed in time from, the first formation of the +court of session; the discontinuance of juries in civil causes, and +the adoption of so many principles from the Roman law as have given +the jurisprudence of Scotland a very different character from our +own.[437] + +In the reign of James V. it might appear probable that by the +influence of laws favourable to public order, better enforced through +the council and court of session than before, by the final subjugation +of the house of Douglas and of the Earls of Ross in the North, and +some slight increase of wealth in the towns, conspiring with the +general tendency of the sixteenth century throughout Europe, the +feudal spirit would be weakened and kept under in Scotland or display +itself only in a parliamentary resistance to what might become in its +turn dangerous, the encroachments of arbitrary power. But immediately +afterwards a new and unexpected impulse was given; religious zeal, so +blended with the ancient spirit of aristocratic independence that the +two motives are scarcely distinguishable, swept before it in the first +whirlwind almost every vestige of the royal sovereignty. The Roman +catholic religion was abolished with the forms indeed of a parliament, +but of a parliament not summoned by the Crown, and by acts that +obtained not its assent. The Scots church had been immensely rich; +its riches had led, as everywhere else, to neglect of duties and +dissoluteness of life; and these vices had met with their usual +punishment in the people's hatred.[438] The reformed doctrines gained +a more rapid and general ascendancy than in England, and were +accompanied with a more strenuous and uncompromising enthusiasm. It is +probable that no sovereign retaining a strong attachment to the +ancient creed would long have been permitted to reign; and Mary is +entitled to every presumption, in the great controversy that belongs +to her name, that can reasonably be founded on this admission. But, +without deviating into that long and intricate discussion, it may be +given as the probable result of fair inquiry, that to impeach the +characters of most of her adversaries would be a far easier task than +to exonerate her own.[439] + +_Power of the presbyterian clergy._--The history of Scotland from the +reformation assumes a character, not only unlike that of preceding +times, but to which there is no parallel in modern ages. It became a +contest, not between the Crown and the feudal aristocracy as before, +nor between the assertors of prerogative and of privilege, as in +England, nor between the possessors of established power and those who +deemed themselves oppressed by it, as is the usual source of civil +discord, but between the temporal and spiritual authorities, the Crown +and the church; that in general supported by the legislature, this +sustained by the voice of the people. Nothing of this kind, at least +in anything like so great a degree, has occurred in other protestant +countries; the Anglican church being, in its original constitution, +bound up with the state as one of its component parts, but subordinate +to the whole; and the ecclesiastical order in the kingdoms and +commonwealths of the continent being either destitute of temporal +authority, or at least subject to the civil magistrate's supremacy. + +Knox, the founder of the Scots' reformation, and those who concurred +with him, both adhered to the theological system of Calvin, and to the +scheme of polity he had introduced at Geneva, with such modifications +as became necessary from the greater scale on which it was to be +practised. Each parish had its minister, lay-elder, and deacon, who +held their kirk-session for spiritual jurisdiction and other purposes; +each ecclesiastical province its synod of ministers and delegated +elders presided over by a superintendent; but the supreme power +resided in the general assembly of the Scots' church, constituted of +all ministers of parishes, with an admixture of delegated laymen, to +which appeals from inferior judicatories lay, and by whose +determinations or canons the whole were bound. The superintendents had +such a degree of episcopal authority as seems implied in their name, +but concurrently with the parochial ministers, and in subordination to +the general assembly; the number of these was designed to be ten, but +only five were appointed.[440] This form of church polity was set up +in 1560; but according to the irregular state of things at that time +in Scotland, though fully admitted and acted upon, it had only the +authority of the church, with no confirmation of parliament; which +seems to have been the first step of the former towards the +independency it came to usurp. Meanwhile it was agreed that the Roman +catholic prelates, including the regulars, should enjoy two-thirds of +their revenues, as well as their rank and seats in parliament; the +remaining third being given to the Crown, out of which stipends should +be allotted to the protestant clergy. Whatever violence may be imputed +to the authors of the Scots' reformation, this arrangement seems to +display a moderation which we should vainly seek in our own. The new +church was, however, but inadequately provided for; and perhaps we may +attribute some part of her subsequent contumacy and encroachment on +the state to the exasperation occasioned by the latter's parsimony, or +rather rapaciousness, in the distribution of ecclesiastical +estates.[441] + +It was doubtless intended by the planners of a presbyterian model, +that the bishoprics should be extinguished by the death of the +possessors, and their revenues be converted, partly to the maintenance +of the clergy, partly to other public interests. But it suited better +the men in power to keep up the old appellations for their own +benefit. As the catholic prelates died away, they were replaced by +protestant ministers, on private compacts to alienate the principal +part of the revenues to those through whom they were appointed. After +some hesitation, a convention of the church, in 1572, agreed to +recognise these bishops, until the king's majority and a final +settlement by the legislature, and to permit them a certain portion of +jurisdiction, though not greater than that of the superintendent, and +equally subordinate to the general assembly. They were not +consecrated; nor would the slightest distinction of order have been +endured by the church. Yet even this moderated episcopacy gave offence +to ardent men, led by Andrew Melville, the second name to Knox in the +ecclesiastical history of Scotland; and, notwithstanding their +engagement to leave things as they were till the determination of +parliament, the general assembly soon began to restrain the bishops by +their own authority, and finally to enjoin them, under pain of +excommunication, to lay down an office which they voted to be +destitute of warrant from the word of God, and injurious to the +church. Some of the bishops submitted to this decree; others, as might +be expected, stood out in defence of their dignity, and were +supported both by the king and by all who conceived that the supreme +power of Scotland, in establishing and endowing the church, had not +constituted a society independent of the commonwealth. A series of +acts in 1584, at a time when the court had obtained a temporary +ascendant, seemed to restore the episcopal government in almost its +pristine lustre. But the popular voice was loud against episcopacy; +the prelates were discredited by their simoniacal alienations of +church-revenues, and by their connection with the court; the king was +tempted to annex most of their lands to the Crown by an act of +parliament in 1587; Adamson, Archbishop of St. Andrews, who had led +the episcopal party, was driven to a humiliating retractation before +the general assembly; and, in 1592, the sanction of the legislature +was for the first time obtained to the whole scheme of presbyterian +polity; and the laws of 1584 were for the most part abrogated. + +The school of Knox, if so we may call the early presbyterian ministers +of Scotland, was full of men breathing their master's spirit; acute in +disputation, eloquent in discourse, learned beyond what their +successors have been, and intensely zealous in the cause of +reformation. They wielded the people at will; who, except in the +Highlands, threw off almost with unanimity the old religion, and took +alarm at the slightest indication of its revival. Their system of +local and general assemblies infused, together with the forms of a +republic, its energy and impatience of exterior control, combined with +the concentration and unity of purpose that belongs to the most +vigorous government. It must be confessed that the unsettled state of +the kingdom, the faults and weakness of the regents Lennox and Morton, +the inauspicious beginning of James's personal administration under +the sway of unworthy favourites, the real perils of the reformed +church, gave no slight pretext for the clergy's interference with +civil policy. Not merely in their representative assemblies, but in +the pulpits, they perpetually remonstrated, in no guarded language, +against the misgovernment of the court, and even the personal +indiscretions of the king. This they pretended to claim as a privilege +beyond the restraint of law. Andrew Melville, second only to Knox +among the heroes of the presbyterian church, having been summoned +before the council in 1584, to give an account of some seditious +language alleged to have been used by him in the pulpit, declined its +jurisdiction, on the ground that he was only responsible, in the first +instance, to his presbytery for words so spoken, of which the king and +council could not judge without violating the immunities of the +church. Precedents for such an immunity it would not have been +difficult to find; but they must have been sought in the archives of +the enemy. It was rather early for the new republic to emulate the +despotism she had overthrown. Such, however, is the uniformity with +which the same passions operate on bodies of men in similar +circumstances; and so greedily do those, whose birth has placed them +far beneath the possession of power, intoxicate themselves with its +unaccustomed enjoyments. It has been urged in defence of Melville, +that he only denied the competence of a secular tribunal in the first +instance; and that, after the ecclesiastical forum had pronounced on +the spiritual offence, it was not disputed that the civil magistrate +might vindicate his own authority.[442] But not to mention that +Melville's claim, as I understand it, was to be judged by his +presbytery in the first instance, and ultimately by the general +assembly, from which, according to the presbyterian theory, no appeal +lay to a civil court; it is manifest that the government would have +come to a very disadvantageous conflict with a man, to whose defence +the ecclesiastical judicature had already pledged itself. For in the +temper of those times it was easy to foresee the determination of a +synod or presbytery. + +James however and his counsellors were not so feeble as to endure this +open renewal of those extravagant pretensions which Rome had taught +her priesthood to assert. Melville fled to England; and a parliament +that met the same year sustained the supremacy of the civil power with +that violence and dangerous latitude of expression so frequent in the +Scots' statute-book. It was made treason to decline the jurisdiction +of the king or council in any matter, to seek the diminution of the +power of any of the three estates of parliament, which struck at all +that had been done against episcopacy, to utter, or to conceal, when +heard from others in sermons or familiar discourse, any false or +slanderous speeches to the reproach of the king, his council, or their +proceedings, or to the dishonour of his parents and progenitors, or to +meddle in the affairs of state. It was forbidden to treat or consult +on any matter of state, civil or ecclesiastical, without the king's +express command; thus rendering the general assembly for its chief +purposes, if not its existence, altogether dependent on the Crown. +Such laws not only annihilated the pretended immunities of the +church, but went very far to set up that tyranny, which the Stuarts +afterwards exercised in Scotland till their expulsion. These were in +part repealed, so far as affected the church, in 1592; but the Crown +retained the exclusive right of convening its general assembly, to +which the presbyterian hierarchy still gives but an evasive and +reluctant obedience.[443] + +These bold demagogues were not long in availing themselves of the +advantage which they had obtained in the parliament of 1592, and +through the troubled state of the realm. They began again to +intermeddle with public affairs, the administration of which was +sufficiently open to censure. This licence brought on a new crisis in +1596. Black, one of the ministers of St. Andrews, inveighing against +the government from the pulpit, painted the king and queen, as well as +their council, in the darkest colours, as dissembling enemies to +religion. James, incensed at this attack, caused him to be summoned +before the privy council. The clergy decided to make common cause with +the accused. The council of the church, a standing committee lately +appointed by the general assembly, enjoined Black to decline the +jurisdiction. The king by proclamation directed the members of this +council to retire to their several parishes. They resolved, instead of +submitting, that since they were convened by the warrant of Christ, in +a most needful and dangerous time, to see unto the good of the church, +they should obey God rather than man. The king offered to stop the +proceedings, if they would but declare that they did not decline the +civil jurisdiction absolutely, but only in the particular case, as +being one of slander, and consequently of ecclesiastical competence. +For Black had asserted before the council, that speeches delivered in +the pulpits, although alleged to be treasonable, could not be judged +by the king, until the church had first taken cognisance thereof. But +these ecclesiastics, in the full spirit of the thirteenth century, +determined by a majority not to recede from their plea. Their contest +with the court soon excited the populace of Edinburgh, and gave rise +to a tumult, which, whether dangerous or not to the king, was what no +government could pass over without utter loss of authority. + +It was in church assemblies alone that James found opposition. His +parliament, as had invariably been the case in Scotland, went readily +into all that was proposed to them; nor can we doubt that the gentry +must for the most part have revolted from these insolent usurpations +of the ecclesiastical order. It was ordained in parliament, that every +minister should declare his submission to the king's jurisdiction in +all matters civil and criminal; that no ecclesiastical judicatory +should meet without the king's consent, and that a magistrate might +commit to prison any minister reflecting in his sermons on the king's +conduct. He had next recourse to an instrument of power more +successful frequently than intimidation, and generally successful in +conjunction with it; gaining over the members of the general assembly, +some by promises, some by exciting jealousies, till they surrendered +no small portion of what had passed for the privileges of the church. +The Crown obtained by their concession, which then seemed almost +necessary to confirm what the legislature had enacted, the right of +convoking assemblies, and of nominating ministers in the principal +towns. + +_Establishment of episcopacy._--James followed up this victory by a +still more important blow. It was enacted that fifty-one ministers, on +being nominated by the king to titular bishoprics and other prelacies, +might sit in parliament as representatives of the church. This seemed +justly alarming to the zealots of party; nor could the general +assembly be brought to acquiesce without such very considerable +restrictions upon these suspicious commissioners, by which name they +prevailed to have them called, as might in some measure afford +security against the revival of that episcopal domination, towards +which the endeavours of the Crown were plainly directed. But the king +paid little regard to these regulations; and thus the name and +parliamentary station of bishops were restored in Scotland after only +six years from their abolition.[444] + +A king like James, not less conceited of his wisdom than full of the +dignity of his station, could not avoid contracting that insuperable +aversion to the Scottish presbytery, which he expressed in his +_Basilicon Doron_, before his accession to the English throne, and +more vehemently on all occasions afterwards. He found a very different +race of churchmen, well trained in the supple school of courtly +conformity, and emulous flatterers both of his power and his wisdom. +The ministers of Edinburgh had been used to pray that God would turn +his heart: Whitgift, at the conference of Hampton Court, falling on +his knees, exclaimed, that he doubted not his majesty spoke by the +special grace of God. It was impossible that he should not redouble +his endeavours to introduce so convenient a system of ecclesiastical +government into his native kingdom. He began, accordingly, to prevent +the meetings of the general assembly by continued prorogations. Some +hardy presbyterians ventured to assemble of their own authority; which +the lawyers construed into treason. The bishops were restored by +parliament, in 1606, to a part of their revenues; the act annexing +these to the Crown being repealed. They were appointed by an +ecclesiastical convention, more subservient to the Crown than +formerly, to be perpetual moderators of provincial synods. The clergy +still gave way with reluctance; but the Crown had an irresistible +ascendancy in parliament; and in 1610 the episcopal system was +thoroughly established. The powers of ordination, as well as +jurisdiction, were solely vested in the prelates; a court of high +commission was created on the English model; and, though the general +assembly of the church still continued, it was merely as a shadow, and +almost mockery, of its original importance. The bishops now repaired +to England for consecration; a ceremony deemed essential in the new +school that now predominated in the Anglican church; and this gave a +final blow to the polity in which the Scottish reformation had been +founded.[445] With far more questionable prudence, James, some years +afterwards, forced upon the people of Scotland what were called the +five articles of Perth, reluctantly adopted by a general assembly held +there in 1617. These were matters of ceremony, such as the posture of +kneeling in the eucharist, the rite of confirmation, and the +observance of certain holidays; but enough to alarm a nation +fanatically abhorrent of every approximation to the Roman worship, and +already incensed by what they deemed the corruption and degradation of +their church.[446] + +That church, if indeed it preserved its identity, was wholly changed +in character; and became as much distinguished in its episcopal form +by servility and corruption as during its presbyterian democracy by +faction and turbulence. The bishops at its head, many of them abhorred +by their own countrymen as apostates and despised for their vices, +looked for protection to the sister church of England in its pride and +triumph. It had long been the favourite project of the court, as it +naturally was of the Anglican prelates, to assimilate in all respects +the two establishments. That of Scotland still wanted one essential +characteristic, a regular liturgy. But in preparing what was called +the service book, the English model was not closely followed; the +variations having all a tendency towards the Romish worship. It is far +more probable that Laud intended these to prepare the way for a +similar change in England, than that, as some have surmised, the +Scottish bishops, from a notion of independence, chose thus to +distinguish their own ritual. What were the consequences of this +unhappy innovation, attempted with that ignorance of mankind which +kings and priests, when left to their own guidance, usually display, +it is here needless to mention. In its ultimate results, it preserved +the liberties and overthrew the monarchy of England. In its more +immediate effects, it gave rise to the national covenant of Scotland; +a solemn pledge of unity and perseverance in a great public cause, +long since devised when the Spanish armada threatened the liberties +and religion of all Britain, but now directed against the domestic +enemies of both. The episcopal government had no friends, even among +those who served the king. To him it was dear by the sincerest +conviction, and by its connection with absolute power, still more +close and direct than in England. But he had reduced himself to a +condition where it was necessary to sacrifice his authority in the +smaller kingdom, if he would hope to preserve it in the greater; and +in this view he consented, in the parliament of 1641, to restore the +presbyterian discipline of the Scottish church; an offence against his +conscience (for such his prejudices led him to consider it) which he +deeply afterwards repented, when he discovered how absolutely it had +failed of serving his interests. + +_Innovations of Charles I._--In the great struggle with Charles +against episcopacy, the encroachments of arbitrary rule, for the sake +of which, in a great measure, he valued that form of church polity, +were not overlooked; and the parliament of 1641 procured some +essential improvements in the civil constitution of Scotland. +Triennial sessions of the legislature, and other salutary +reformations, were borrowed from their friends and coadjutors in +England. But what was still more important, was the abolition of that +destructive control over the legislature, which the Crown had obtained +through the lords of articles. These had doubtless been originally +nominated by the several estates in parliament, solely to expedite the +management of business, and relieve the entire body from attention to +it. But, as early as 1561, we find a practice established, that the +spiritual lords should choose the temporal, generally eight in +number, who were to sit on this committee, and conversely; the +burgesses still electing their own. To these it became usual to add +some of the officers of state; and in 1617 it was established that +eight of them should be on the list. Charles procured, without +authority of parliament, a further innovation in 1633. The bishops +chose eight peers, the peers eight bishops; and these appointed +sixteen commissioners of shires and boroughs. Thus the whole power +devolved upon the bishops, the slaves and sycophants of the Crown. The +parliament itself met only on two days, the first and last of their +pretended session, the one time in order to choose the lords of +articles, the other, to ratify what they proposed.[447] So monstrous +an anomaly could not long subsist in a high-spirited nation. This +improvident assumption of power by low-born and odious men +precipitated their downfall, and made the destruction of the hierarchy +appear the necessary guarantee for parliamentary independence, and the +ascendant of the aristocracy. But, lest the court might, in some other +form, regain this preliminary or initiative voice in legislation, +which the experience of many governments has shown to be the surest +method of keeping supreme authority in their hands, it was enacted in +1641, that each estate might choose lords of articles or not, at its +discretion; but that all propositions should in the first instance be +submitted to the whole parliament, by whom such only as should be +thought fitting might be referred to the committee of articles for +consideration. + +_Arbitrary government._--This parliament, however, neglected to +abolish one of the most odious engines that tyranny ever devised +against public virtue, the Scots law of treason. It had been enacted +by a statute of James I. in 1424, that all leasing-makers, and tellers +of what might engender discord between the king and his people, should +forfeit life and goods.[448] This act was renewed under James II. It +was aimed at the factious aristocracy, who perpetually excited the +people by invidious reproaches against the king's administration. But +in 1584, a new antagonist to the Crown having appeared in the +presbyterian pulpits, it was determined to silence opposition by +giving the statute of leasing-making, as it was denominated, a more +sweeping operation. Its penalties were accordingly extended to such as +should "utter untrue or slanderous speeches, to the disdain, reproach, +and contempt of his highness, his parents and progenitors, or should +meddle in the affairs of his highness or his estate." The "hearers and +not reporters thereof" were subjected to the same punishment. It may +be remarked that these Scots statutes are worded with a latitude never +found in England, even in the worst times of Henry VIII. Lord +Balmerino, who had opposed the court in the parliament of 1633, +retained in his possession a copy of an apology intended to have been +presented by himself and other peers in their exculpation, but from +which they had desisted, in apprehension of the king's displeasure. +This was obtained clandestinely, and in breach of confidence, by some +of his enemies; and he was indicted on the statute of leasing-making, +as having concealed a slander against his majesty's government. A jury +was returned with gross partiality; yet so outrageous was the +attempted violation of justice that Balmerino was only convicted by a +majority of eight against seven. For in Scots juries a simple majority +was sufficient, as it is still in all cases except treason. It was not +thought expedient to carry this sentence into execution; but the +kingdom could never pardon its government so infamous a stretch of +power.[449] The statute itself however seems not to have shared the +same odium; we do not find any effort made for its repeal; and the +ruling party in 1641, unfortunately, did not scruple to make use of +its sanguinary provisions against their own adversaries.[450] + +The conviction of Balmerino is hardly more repugnant to justice than +some other cases in the long reign of James VI. Eight years after the +execution of the Earl of Gowrie and his brother, one Sprot, a notary, +having indiscreetly mentioned that he was in possession of letters, +written by a person since dead, which evinced his participation in +that mysterious conspiracy, was put to death for concealing them.[451] +Thomas Ross suffered, in 1618, the punishment of treason for +publishing at Oxford a blasphemous libel, as the indictment calls it, +against the Scots nation.[452] I know not what he could have said +worse than what their sentence against him enabled others to say, +that, amidst a great vaunt of Christianity and civilisation, they took +away men's lives by such statutes, and such constructions of them, as +could only be paralleled in the annals of the worst tyrants. By an act +of 1584, the privy council were empowered to examine an accused party +on oath; and, if he declined to answer any question, it was held +denial of their jurisdiction, and amounted to a conviction of treason. +This was experienced by two jesuits, Crighton and Ogilvy in 1610 and +1615, the latter of whom was executed.[453] One of the statutes upon +which he was indicted contained the singular absurdity of "annulling +and rescinding everything done, or hereafter to be done, in prejudice +of the royal prerogative, in any time bygone or to come." + +_Civil war._--It was perhaps impossible that Scotland should remain +indifferent in the great quarrel of the sister kingdom. But having set +her heart upon two things incompatible in themselves from the outset, +according to the circumstances of England, and both of them ultimately +impracticable, the continuance of Charles on the throne and the +establishment of a presbyterian church, she fell into a long course of +disaster and ignominy, till she held the name of a free constitution +at the will of a conqueror. Of the three most conspicuous among her +nobility in this period, each died by the hand of the executioner; but +the resemblance is in nothing besides; and the characters of Hamilton, +Montrose, and Argyle are not less contrasted than the factions of +which they were the leaders. Humbled and broken down, the people +looked to the re-establishment of Charles II. on the throne of his +fathers, though brought about by the sternest minister of Cromwell's +tyranny, not only as the augury of prosperous days, but as the +obliteration of public dishonour. + +_Tyrannical government of Charles II._--They were miserably deceived +in every hope. Thirty infamous years consummated the misfortunes and +degradation of Scotland. Her factions have always been more +sanguinary, her rulers more oppressive, her sense of justice and +humanity less active, or at least shown less in public acts, than can +be charged against England. The parliament of 1661, influenced by +wicked statesmen and lawyers, left far behind the Royalist Commons of +London; and rescinded as null the entire acts of 1641, on the absurd +pretext that the late king had passed them through force. The Scots' +constitution fell back at once to a state little better than +despotism. The lords of articles were revived, according to the same +form of election as under Charles I. A few years afterwards the Duke +of Lauderdale obtained the consent of parliament to an act, that +whatever the king and council should order respecting all +ecclesiastical matters, meetings, and persons, should have the force +of law. A militia, or rather army, of 22,000 men, was established, to +march wherever the council should appoint, and the honour and safety +of the king require. Fines to the amount of L85,000, an enormous sum +in that kingdom, were imposed on the covenanters. The Earl of Argyle +brought to the scaffold by an outrageous sentence, his son sentenced +to lose his life on such a construction of the ancient law against +leasing-making as no man engaged in political affairs could be sure to +escape, the worst system of constitutional laws administered by the +worst men, left no alternative but implicit obedience or desperate +rebellion. + +The presbyterian church of course fell by the act, which annulled the +parliament wherein it had been established. Episcopacy revived, but +not as it had once existed in Scotland; the jurisdiction of the +bishops became unlimited; the general assemblies, so dear to the +people, were laid aside.[454] The new prelates were odious as +apostates, and soon gained a still more indelible title to popular +hatred as persecutors. Three hundred and fifty of the presbyterian +clergy (more than one-third of the whole number) were ejected from +their benefices.[455] Then began the preaching in conventicles, and +the secession of the excited and exasperated multitude from the +churches; and then ensued the ecclesiastical commission with its +inquisitorial vigilance, its fines and corporal penalties, and the +free quarters of the soldiery, with all that can be implied in that +word. Then came the fruitless insurrection, and the fanatical +assurance of success, and the certain discomfiture by a disciplined +force, and the consternation of defeat, and the unbounded cruelties of +the conqueror. And this went on with perpetual aggravation, or very +rare intervals, through the reign of Charles; the tyranny of +Lauderdale far exceeding that of Middleton, as his own fell short of +the Duke of York's. No part, I believe, of modern history for so long +a period, can be compared for the wickedness of government to the +Scots administration of this reign. In proportion as the laws grew +more rigorous against the presbyterian worship, its followers evinced +more steadiness; driven from their conventicles, they resorted, +sometimes by night, to the fields, the woods, the mountains; and, as +the troops were continually employed to disperse them, they came with +arms which they were often obliged to use; and thus the hour, the +place, the circumstance, deepened every impression, and bound up their +faith with indissoluble associations. The same causes produced a dark +fanaticism, which believed the revenge of its own wrongs to be the +execution of divine justice; and, as this acquired new strength by +every successive aggravation of tyranny, it is literally possible that +a continuance of the Stuart government might have led to something +very like an extermination of the people in the western counties of +Scotland. In the year 1676 letters of intercommuning were published; a +writ forbidding all persons to hold intercourse with the parties put +under its ban, or to furnish them with any necessary of life on pain +of being reputed guilty of the same crime. But seven years afterwards, +when the Cameronian rebellion had assumed a dangerous character, a +proclamation was issued against all who had ever harboured or communed +with rebels; courts were appointed to be held for their trial as +traitors, which were to continue for the next three years. Those who +accepted the test, a declaration of passive obedience repugnant to the +conscience of the presbyterians, and imposed for that reason in 1681, +were excused from these penalties; and in this way they were eluded. + +The enormities of this detestable government are far too numerous, +even in species, to be enumerated in this slight sketch; and of course +most instances of cruelty have not been recorded. The privy council +was accustomed to extort confessions by torture; that grim divan of +bishops, lawyers, and peers sucking in the groans of each undaunted +enthusiast, in hope that some imperfect avowal might lead to the +sacrifice of other victims, or at least warrant the execution of the +present. It is said that the Duke of York, whose conduct in Scotland +tends to efface those sentiments of pity and respect which other parts +of his life might excite, used to assist himself on these +occasions.[456] One Mitchell having been induced, by a promise that +his life should be spared, to confess an attempt to assassinate Sharp +the primate, was brought to trial some years afterwards; when four +lords of the council deposed on oath that no such assurance had been +given him; and Sharp insisted upon his execution. The vengeance +ultimately taken on this infamous apostate and persecutor, though +doubtless in violation of what is justly reckoned an universal rule of +morality, ought at least not to weaken our abhorrence of the man +himself. + +The test above mentioned was imposed by parliament in 1681, and +contained, among other things, an engagement never to attempt any +alteration of government in church or state. The Earl of Argyle, son +of him who had perished by an unjust sentence, and himself once before +attainted by another, though at that time restored by the king, was +still destined to illustrate the house of Campbell by a second +martyrdom. He refused to subscribe the test without the reasonable +explanation that he would not bind himself from attempting, in his +station, any improvement in church or state. This exposed him to an +accusation of leasing-making (the old mystery of iniquity in Scots +law) and of treason. He was found guilty through the astonishing +audacity of the Crown lawyers and servility of the judges and jury. It +is not perhaps certain that his immediate execution would have ensued; +but no man ever trusted securely to the mercies of the Stuarts, and +Argyle escaped in disguise by the aid of his daughter-in-law. The +council proposed that this lady should be publicly whipped; but there +was an excess of atrocity in the Scots on the court side, which no +Englishman could reach; and the Duke of York felt as a gentleman upon +such a suggestion.[457] The Earl of Argyle was brought to the scaffold +a few years afterwards on the old sentence; but after his unfortunate +rebellion, which of course would have legally justified his execution. + +The Cameronians, a party rendered wild and fanatical through +intolerable oppression, published a declaration, wherein, after +renouncing their allegiance to Charles, and expressing their +abhorrence of murder on the score of religion, they announced their +determination of retaliating, according to their power, on such privy +counsellors, officers in command, or others, as should continue to +seek their blood. The fate of Sharp was thus before the eyes of all +who emulated his crimes; and in terror the council ordered that +whoever refused to disown this declaration on oath, should be put to +death in the presence of two witnesses. Every officer, every soldier, +was thus entrusted with the privilege of massacre; the unarmed, the +women and children, fell indiscriminately by the sword: and besides +the distinct testimonies that remain of atrocious cruelty, there +exists in that kingdom a deep traditional horror, the record, as it +were, of that confused mass of crime and misery which has left no +other memorial.[458] + +_Reign of James VII._--A parliament summoned by James on his +accession, with an intimation from the throne that they were assembled +not only to express their own duty, but to set an example of +compliance to England, gave, without the least opposition, the +required proofs of loyalty. They acknowledged the king's absolute +power, declared their abhorrence of any principle derogatory to it, +professed an unreserved obedience in all cases, bestowed a large +revenue for life. They enhanced the penalties against sectaries; a +refusal to give evidence against traitors or other delinquents was +made equivalent to a conviction of the same offence; it was capital to +preach even in houses, or to hear preachers in the fields. The +persecution raged with still greater fury in the first part of this +reign. But the same repugnance of the episcopal party to the king's +schemes for his own religion, which led to his remarkable change of +policy in England, produced similar effects in Scotland. He had +attempted to obtain from parliament a repeal of the penal laws and the +test; but, though an extreme servility or a general intimidation made +the nobility acquiesce in his propositions, and two of the bishops +were gained over, yet the commissioners of shires and boroughs, who +voting promiscuously in the house, had, when united, a majority over +the peers, so firmly resisted every encroachment of popery, that it +was necessary to try other methods than those of parliamentary +enactment. After the dissolution the dispensing power was brought into +play; the privy council forbade the execution of the laws against the +catholics; several of that religion were introduced to its board; the +royal boroughs were deprived of their privileges, the king assuming +the nomination of their chief magistrates, so as to throw the +elections wholly into the hands of the Crown. A declaration of +indulgence, emanating from the king's absolute prerogative, relaxed +the severity of the laws against presbyterian conventicles, and, +annulling the oath of supremacy and the test of 1681, substituted for +them an oath of allegiance, acknowledging his power to be unlimited. +He promised at the same time that "he would use no force nor +invincible necessity against any man on account of his persuasion, or +the protestant religion, nor would deprive the possessors of lands +formerly belonging to the church." A very intelligible hint that the +protestant religion was to exist only by this gracious sufferance. + +_Revolution and establishment of presbytery._--The oppressed +presbyterians gained some respite by this indulgence, though instances +of executions under the sanguinary statutes of the late reign are +found as late as the beginning of 1688. But the memory of their +sufferings was indelible; they accepted, but with no gratitude, the +insidious mercy of a tyrant they abhorred. The Scots' conspiracy with +the Prince of Orange went forward simultaneously with that of England; +it included several of the council, from personal jealousy, dislike of +the king's proceedings as to religion, or anxiety to secure an +indemnity they had little deserved in the approaching crisis. The +people rose in different parts; the Scots' nobility and gentry in +London presented an address to the Prince of Orange, requesting him to +call a convention of the estates; and this irregular summons was +universally obeyed. + +The king was not without friends in this convention; but the whigs had +from every cause a decided preponderance. England had led the way; +William was on his throne; the royal government at home was wholly +dissolved; and, after enumerating in fifteen articles the breaches +committed on the constitution, the estates came to a resolution: "That +James VII., being a professed papist, did assume the royal power, and +acted as king, without ever taking the oath required by law, and had, +by the advice of evil and wicked counsellors, invaded the fundamental +constitution of the kingdom, and altered it from a legal limited +monarchy to an arbitrary despotic power, and hath exerted the same to +the subversion of the protestant religion, and the violation of the +laws and liberties of the kingdom, whereby he hath forfaulted +(forfeited) his right to the Crown, and the throne has become vacant." +It was evident that the English vote of a constructive abdication, +having been partly grounded on the king's flight, could not without +still greater violence be applied to Scotland; and consequently the +bolder denomination of forfeiture was necessarily employed to express +the penalty of his mis-government. There was, in fact, a very striking +difference in the circumstances of the two kingdoms. In the one, there +had been illegal acts and unjustifiable severities; but it was, at +first sight, no very strong case for national resistance, which stood +rather on a calculation of expediency than an instinct of +self-preservation or an impulse of indignant revenge. But in the +other, it had been a tyranny, dark as that of the most barbarous ages; +despotism, which in England was scarcely in blossom, had borne its +bitter and poisonous fruits: no word of slighter import than +forfeiture could be chosen to denote the national rejection of the +Stuart line. + +_Reign of William III._--A declaration and claim of rights was drawn +up, as in England, together with the resolution that the crown be +tendered to William and Mary, and descend afterwards in conformity +with the limitations enacted in the sister kingdom. This declaration +excluded papists from the throne, and asserted the illegality of +proclamations to dispense with statutes, of the inflicting capital +punishment without jury, of imprisonment without special cause or +delay of trial, of exacting enormous fines, of nominating the +magistrates in boroughs, and several other violent proceedings in the +two last reigns. These articles the convention challenged as their +undoubted right, against which no declaration nor precedent ought to +operate. They reserved some other important grievances to be redressed +in parliament. Upon this occasion, a noble fire of liberty shone forth +to the honour of Scotland, amidst those scenes of turbulent faction or +servile corruption which the annals of her parliament so perpetually +display. They seemed emulous of English freedom, and proud to place +their own imperfect commonwealth on as firm a basis. + +One great alteration in the state of Scotland was almost necessarily +involved in the fall of the Stuarts. Their most conspicuous object had +been the maintenance of the episcopal church; the line was drawn far +more closely than in England; in that church were the court's friends, +out of it were its opponents. Above all, the people were out of it, +and in a revolution brought about by the people, their voice could not +be slighted. It was one of the articles accordingly in the declaration +of rights, that prelacy and precedence in ecclesiastical office were +repugnant to the genius of a nation reformed by presbyters, and an +unsupportable grievance which ought to be abolished. William, there is +reason to believe, had offered to preserve the bishops, in return for +their support in the convention. But this, not more happily for +Scotland than for himself and his successors, they refused to give. No +compromise, or even acknowledged toleration, was practicable in that +country between two exasperated factions; but, if oppression was +necessary, it was at least not on the majority that it ought to fall. +But besides this, there was as clear a case of forfeiture in the +Scots' episcopal church, as in the royal family of Stuart. The main +controversy between the episcopal and presbyterian churches was one of +dry antiquarian criticism, little more interesting than those about +the Roman senate, or the Saxon wittenagemot, nor perhaps more capable +of decisive solution; it was at least one as to which the bulk of +mankind are absolutely incapable of forming a rational judgment for +themselves. But, mingled up as it had always been, and most of all in +Scotland, with faction, with revolution, with power and emolument, +with courage and devotion, and fear, and hate, and revenge, this arid +dispute of pedants drew along with it the most glowing emotions of the +heart, and the question became utterly out of the province of +argument. It was very possible that episcopacy might be of apostolical +institution; but for this institution houses had been burned and +fields laid waste, and the gospel had been preached in wildernesses, +and its ministers had been shot in their prayers, and husbands had +been murdered before their wives, and virgins had been defiled, and +many had died by the executioner, and by massacre, and in +imprisonment, and in exile and slavery, and women had been tied to +stakes on the sea-shore till the tide rose to overflow them, and some +had been tortured and mutilated; it was a religion of the boots and +the thumb-screw, which a good man must be very cool-blooded indeed if +he did not hate and reject from the hands which offered it. For, after +all, it is much more certain that the Supreme Being abhors cruelty and +persecution, than that he has set up bishops to have a superiority +over presbyters. + +It was, however, a serious problem at that time, whether the +presbyterian church, so proud and stubborn as she had formerly shown +herself, could be brought under a necessary subordination to the civil +magistrate, and whether the more fanatical part of it, whom Cargill +and Cameron had led on, would fall again into the ranks of social +life. But here experience victoriously confuted these plausible +apprehensions. It was soon perceived that the insanity of fanaticism +subsides of itself, unless purposely heightened by persecution. The +fiercer spirit of the sectaries was allayed by degrees; and, though +vestiges of it may probably still be perceptible by observers, it has +never, in a political sense, led to dangerous effects. The church of +Scotland, in her general assemblies, preserves the forms, and affects +the language, of the sixteenth century; but the Erastianism, against +which she inveighs, secretly controls and paralyses her vaunted +liberties; and she cannot but acknowledge that the supremacy of the +legislature is like the collar of the watch-dog, the price of food and +shelter, and the condition upon which alone a religious society can be +endowed and established by any prudent commonwealth.[459] The +judicious admixture of laymen in these assemblies, and, in a far +greater degree, the perpetual intercourse with England, which has put +an end to everything like sectarian bigotry, and even exclusive +communion, in the higher and middling classes, are the principal +causes of that remarkable moderation which for many years has +characterised the successors of Knox and Melville. + +The convention of estates was turned by an act of its own into a +parliament, and continued to sit during the king's reign. This, which +was rather contrary to the spirit of a representative government than +to the Scots constitution, might be justified by the very unquiet +state of the kingdom and the intrigues of the jacobites. Many +excellent statutes were enacted in this parliament, besides the +provisions included in the declaration of rights; twenty-six members +were added to the representation of the counties, the tyrannous acts +of the two last reigns were repealed, the unjust attainders were +reversed, the lords of articles were abolished. After some years, an +act was obtained against wrongous imprisonment, still more effectual +perhaps in some respects than that of the habeas corpus in England. +The prisoner is to be released on bail within twenty-four hours on +application to a judge, unless committed on a capital charge; and in +that case must be brought to trial within sixty days. A judge refusing +to give full effect to the act is declared incapable of public trust. + +Notwithstanding these great improvements in the constitution, and the +cessation of religious tyranny, the Scots are not accustomed to look +back on the reign of William with much complacency. The regeneration +was far from perfect; the court of session continued to be corrupt and +partial; severe and illegal proceedings might sometimes be imputed to +the council; and in one lamentable instance, the massacre of the +Macdonalds in Glencoe, the deliberate crime of some statesmen +tarnished not slightly the bright fame of their deceived master: +though it was not for the adherents of the house of Stuart, under whom +so many deeds of more extensive slaughter had been perpetrated, to +fill Europe with their invectives against this military +execution.[460] The episcopal clergy, driven out injuriously by the +populace from their livings, were permitted after a certain time to +hold them again in some instances under certain conditions; but +William, perhaps almost the only consistent friend of toleration in +his kingdoms, at least among public men, lost by this indulgence the +affection of one party, without in the slightest degree conciliating +the other.[461] The true cause, however, of the prevalent +disaffection at this period was the condition of Scotland, an ancient, +independent kingdom, inhabited by a proud, high-spirited people, +relatively to another kingdom, which they had long regarded with +enmity, still with jealousy; but to which, in despite of their +theoretical equality, they were kept in subordination by an +insurmountable necessity. The union of the two crowns had withdrawn +their sovereign and his court; yet their government had been national, +and on the whole with no great intermixture of English influence. Many +reasons, however, might be given for a more complete incorporation, +which had been the favourite project of James I., and was discussed, +at least on the part of Scotland, by commissioners appointed in 1670. +That treaty failed of making any progress; the terms proposed being +such as the English parliament would never have accepted. At the +revolution a similar plan was just hinted, and abandoned. Meanwhile, +the new character that the English government had assumed rendered it +more difficult to preserve the actual connection. A king of both +countries, especially by origin more allied to the weaker, might +maintain some impartiality in his behaviour towards each of them. But, +if they were to be ruled, in effect, nearly as two republics; that is, +if the power of their parliaments should be so much enhanced as +ultimately to determine the principal measures of state (which was at +least the case in England), no one who saw their mutual jealousy, +rising on one side to the highest exasperation, could fail to +anticipate that some great revolution must be at hand; and that an +union, neither federal nor legislative, but possessing every +inconvenience of both, could not long be endured. The well known +business of the Darien company must have undeceived every rational man +who dreamed of any alternative but incorporation or separation. The +Scots parliament took care to bring on the crisis by the act of +security in 1704. It was enacted that, on the queen's death without +issue, the estates should meet to name a successor of the royal line, +and a protestant; but that this should not be the same person who +would succeed to the crown of England, unless during her majesty's +reign conditions should be established to secure from English +influence the honour and independence of the kingdom, the authority of +parliament, the religion, trade, and liberty of the nation. This was +explained to mean a free intercourse with the plantations, and the +benefits of the navigation act. The prerogative of declaring peace and +war was to be subjected for ever to the approbation of parliament, +lest at any future time these conditions should be revoked. + +_Act of security._--Those who obtained the act of security were partly +of the jacobite faction, who saw in it the hope of restoring at least +Scotland to the banished heir; partly of a very different description, +whigs in principle, and determined enemies of the Pretender, but +attached to their country, jealous of the English court, and +determined to settle a legislative union on such terms as became an +independent state. Such an union was now seen in England to be +indispensable; the treaty was soon afterwards begun, and, after a long +discussion of the terms between the commissioners of both kingdoms, +the incorporation took effect on the 1st of May 1707. It is provided +by the articles of this treaty, confirmed by the parliaments, that the +succession of the united kingdom shall remain to the Princess Sophia, +and the heirs of her body, being protestants; that all privileges of +trade shall belong equally to both nations; that there shall be one +great seal, and the same coin, weights, and measures; that the +episcopal and presbyterian churches of England and Scotland shall be +for ever established, as essential and fundamental parts of the union; +that the united kingdom shall be represented by one and the same +parliament, to be called the parliament of Great Britain; that the +number of peers for Scotland shall be sixteen, to be elected for every +parliament by the whole body, and the number of representatives of the +Commons forty-five, two-thirds of whom to be chosen by the counties, +and one-third by the boroughs; that the Crown be restrained from +creating any new peers of Scotland; that both parts of the united +kingdom shall be subject to the same duties of excise, and the same +customs on export and import; but that, when England raises two +millions by a land-tax, L48,000 shall be raised in Scotland, and in +like proportion. + +It has not been unusual for Scotsmen, even in modern times, while they +cannot but acknowledge the expediency of an union, and the blessings +which they have reaped from it, to speak of its conditions as less +favourable than their ancestors ought to have claimed. For this +however there does not seem much reason. The ratio of population would +indeed have given Scotland about one-eighth of the legislative body, +instead of something less than one-twelfth; but no government except +the merest democracy is settled on the sole basis of numbers; and if +the comparison of wealth and of public contributions was to be +admitted, it may be thought that a country, which stipulated for +itself to pay less than one-fortieth of direct taxation, was not +entitled to a much greater share of the representation than it +obtained. Combining the two ratios of population and property, there +seems little objection to this part of the union; and in general it +may be observed of the articles of that treaty, what often occurs with +compacts intended to oblige future ages, that they have rather tended +to throw obstacles in the way of reformations for the substantial +benefit of Scotland, than to protect her against encroachment and +usurpation. + +This however could not be securely anticipated in the reign of Anne; +and, no doubt, the measure was an experiment of such hazard that every +lover of his country must have consented in trembling, or revolted +from it with disgust. No past experience of history was favourable to +the absorption of a lesser state (at least where the government +partook so much of the republican form) in one of superior power and +ancient rivalry. The representation of Scotland in the united +legislature was too feeble to give anything like security against the +English prejudices and animosities, if they should continue or revive. +The church was exposed to the most apparent perils, brought thus +within the power of a legislature so frequently influenced by one +which held her not as a sister, but rather a bastard usurper of a +sister's inheritance; and, though her permanence was guaranteed by the +treaty, yet it was hard to say how far the legal competence of +parliament might hereafter be deemed to extend, or at least how far +she might be abridged of her privileges, and impaired in her +dignity.[462] If very few of these mischiefs have resulted from the +union, it has doubtless been owing to the prudence of our government, +and chiefly to the general sense of right, and the diminution both of +national and religious bigotry during the last century. But it is +always to be kept in mind, as the best justification of those who came +into so great a sacrifice of natural patriotism, that they gave up no +excellent form of polity, that the Scots constitution had never +produced the people's happiness, that their parliament was bad in its +composition, and in practice little else than a factious and venal +aristocracy; that they had before them the alternatives of their +present condition, with the prospect of unceasing discontent, half +suppressed by unceasing corruption, or of a more honourable, but very +precarious, separation of the two kingdoms, the renewal of national +wars and border-feuds, at a cost the poorer of the two could never +endure, and at a hazard of ultimate conquest, which, with all her +pride and bravery, the experience of the last generation had shown to +be no impossible term of the contest. + +The union closes the story of the Scots constitution. From its own +nature, not more than from the gross prostitution with which a +majority had sold themselves to the surrender of their own legislative +existence, it was long odious to both parties in Scotland. An attempt +to dissolve it by the authority of the united parliament itself was +made in a very few years, and not very decently supported by the whigs +against the queen's last ministry. But, after the accession of the +house of Hanover, the jacobite party displayed such strength in +Scotland, that to maintain the union was evidently indispensable for +the reigning family. That party comprised a large proportion of the +superior classes, and nearly the whole of the episcopal church, which, +though fallen, was for some years considerable in numbers. The +national prejudices ran in favour of their ancient stock of kings, +conspiring with the sentiment of dishonour attached to the union +itself, and jealousy of some innovations which a legislature they were +unwilling to recognise thought fit to introduce. It is certain that +jacobitism, in England little more, after the reign of George I., than +an empty word, the vehicle of indefinite dissatisfaction in those who +were never ready to encounter peril or sacrifice advantage for its +affected principle, subsisted in Scotland as a vivid emotion of +loyalty, a generous promptitude to act or suffer in its cause; and, +even when all hope was extinct, clung to the recollections of the +past, long after the very name was only known by tradition, and every +feeling connected with it had been wholly effaced to the south of the +Tweed. It is believed that some persons in that country kept up an +intercourse with Charles Edward as their sovereign till his decease in +1787. They had given, forty years before, abundant testimonies of +their activity to serve him. That rebellion is, in more respects than +one, disgraceful to the British government; but it furnished an +opportunity for a wise measure to prevent its recurrence, and to break +down in some degree the aristocratical ascendancy, by abolishing the +hereditary jurisdictions which, according to the genius of the feudal +system, were exercised by territorial proprietors under royal charter +or prescription. Much however still remains to be done, in order to +place that now wealthy and well-instructed people on a footing with +the English, as to the just participation of political liberty; but +what would best conform to the spirit of the act of union might +possibly sometimes contravene its letter. + +FOOTNOTES: + +[418] Chalmers's _Caledonia_, vol. i. _passim_. + +[419] _Id._ 500 _et post_; Dalrymple's _Annals of Scotland_, 28, 30, +etc. + +[420] Chalmers, 741; Wight's _Law of Election in Scotland_, 28. + +[421] _Id._ 25; Dalrymple's _Annals_, i. 139, 235, 283; ii. 55, 116; +Chalmers, 743. Wight thinks they might perhaps only have had a voice +in the imposition of taxes. + +[422] Dalrymple, ii. 241; Wight, 26. + +[423] Statutes of Scotland, 1427; Pinkerton's _History of Scotland_, +i. 120; Wight, 30. + +[424] Dalrymple, ii. 261; Stuart on _Public Law of Scotland_, 344; +Robertson's _History of Scotland_, i. 84. + +[425] Wight, 62, 65. + +[426] _Id._ 69. + +[427] Pinkerton, i. 373. + +[428] _Id._ 360. + +[429] _Id._ 372. + +[430] Pinkerton, ii. 53. + +[431] In a statute of James II. (1440) "the three estates conclude +_that it is speedful_ that our sovereign lord the king ride throughout +the realm incontinent as shall be seen to the council where any +rebellion, slaughter, burning, robbery, outrage, or theft has +happened," etc. Statutes of Scotland, ii. 32. Pinkerton (i. 192), +leaving out the words in italics, has argued on false premises. "In +this singular decree we find the legislative body regarding the king +in the modern light of a chief magistrate, bound equally with the +meanest subject to obedience to the laws," etc. It is evident that the +estates spoke in this instance as counsellors, not as legislators. +This is merely an oversight of a very well-informed historian, who is +by no means in the trammels of any political theory. + +A remarkable expression, however, is found in a statute of the same +king, in 1450; which enacts that any man rising in war against the +king, or receiving such as have committed treason, or holding houses +against the king, or assaulting castles or places where the king's +power shall happen to be, _without the consent of the three estates_, +shall be punished as a traitor. Pinkerton i. 213. I am inclined to +think that the legislators had in view the possible recurrence of what +had very lately happened, that an ambitious cabal might get the king's +person into their power. The peculiar circumstances of Scotland are to +be taken into account when we consider these statutes, which are not +to be looked at as mere insulated texts. + +[432] Pinkerton, i. 234. + +[433] _Statutes of Scotland_, ii. 177. + +[434] Pinkerton, ii. 266. + +[435] Pinkerton, ii. 400; Laing, iii. 32. + +[436] Kaims's _Law Tracts_; Pinkerton, i. 158 _et alibi_; Stuart on +_Public Law of Scotland_. + +[437] Kaims's _Law Tracts_; Pinkerton's _Hist. of Scotland_, i. 117, +237, 388, ii. 313; Robertson, i. 43; Stuart on _Law of Scotland_. + +[438] Robertson, i. 149; M'Crie's _Life of Knox_, p. 15. At least one +half of the wealth of Scotland was in the hands of the clergy, chiefly +of a few individuals. _Ibid._ + +[439] I have read a good deal on this celebrated controversy; but, +where so much is disputed, it is not easy to form an opinion on every +point. But, upon the whole, I think there are only two hypotheses that +can be advanced with any colour of reason. The first is, that the +murder of Darnley was projected by Bothwell, Maitland, and some +others, without the queen's express knowledge, but with a reliance on +her passion for the former, which would lead her both to shelter him +from punishment, and to raise him to her bed; and that, in both +respects, this expectation was fully realised by a criminal connivance +at the escape of one whom she must believe to have been concerned in +her husband's death, and by a still more infamous marriage with him. +This, it appears to me, is a conclusion that may be drawn by reasoning +on admitted facts, according to the common rules of presumptive +evidence. The second supposition is, that she had given a previous +consent to the assassination. This is rendered probable by several +circumstances, and especially by the famous letters and sonnets, the +genuineness of which has been so warmly disputed. I must confess that +they seem to me authentic, and that Mr. Laing's dissertation on the +murder of Darnley has rendered Mary's innocence, even as to +participation in that crime, an untenable proposition. No one of any +weight, I believe, has asserted it since his time except Dr. Lingard, +who manages the evidence with his usual adroitness, but by admitting +the general authenticity of the letters, qualified by a mere +conjecture of interpolations, has given up what his predecessors +deemed the very key of the citadel. + +I shall dismiss a subject so foreign to my purpose, with remarking a +fallacy which affects almost the whole argument of Mary's most +strenuous advocates. They seem to fancy that, if the Earls of Murray +and Morton, and Secretary Maitland of Lethington, can be proved to +have been concerned in Darnley's murder, the queen herself is at once +absolved. But it is generally agreed that Maitland was one of those +who conspired with Bothwell for this purpose; and Morton, if he were +not absolutely consenting, was by his own acknowledgment at his +execution apprised of the conspiracy. With respect to Murray indeed +there is not a shadow of evidence, nor had he any probable motive to +second Bothwell's schemes; but, even if his participation were +presumed, it would not alter in the slightest degree the proofs as to +the queen. + +[440] Spottiswood's _Church History_, 152; M'Crie's _Life of Knox_, +ii. 6; _Life of Melville_, i. 143; Robertson's _History of Scotland_; +Cook's _History of the Reformation in Scotland_. These three modern +writers leave, apparently, little to require as to this important +period of history; the first with an intenseness of sympathy that +enhances our interest, though it may not always command our +approbation; the two last with a cooler and more philosophical +impartiality. + +[441] M'Crie's _Life of Knox_, ii. 197 _et alibi_; Cook, iii. 308. +According to Robertson, i. 291, the whole revenue of the protestant +church, at least in Mary's reign, was about 24,000 pounds Scots, which +seems almost incredible. + +[442] M'Crie's _Life of Melville_, i. 287, 296. It is impossible to +think without respect of this most powerful writer, before whom there +are few living controversialists that would not tremble; but his +presbyterian Hildebrandism is a little remarkable in this age. + +[443] M'Crie's _Life of Melville_; Robertson; Spottiswood. + +[444] Spottiswood; Robertson; M'Crie. + +[445] M'Crie's _Life of Melville_, ii. 378; Laing's _History of +Scotland_, iii. 20, 35, 42, 62. + +[446] Laing, 74, 89. + +[447] Wight, 69 _et post_. + +[448] _Statutes of Scotland_, vol. ii. p. 8; Pinkerton, i. 115; Laing, +iii. 117. + +[449] Laing, _ibid._ + +[450] Arnot's _Criminal Trials_, p. 122. + +[451] The Gowrie conspiracy is well known to be one of the most +difficult problems in history. Arnot has given a very good account of +it (p. 20), and shown its truth, which could not reasonably be +questioned, whatever motive we may assign for it. He has laid stress +on Logan's letters, which appear to have been unaccountably slighted +by some writers. I have long had a suspicion, founded on these +letters, that the Earl of Bothwell, a daring man of desperate +fortunes, was in some manner concerned in the plot, of which the Earl +of Gowrie and his brother were the instruments. + +[452] Arnot's _Criminal Trials_, p. 70. + +[453] Arnot, pp. 67, 329; _State Trials_, ii. 884. The prisoner was +told that he was not charged for saying mass, nor for seducing the +people to popery, nor for anything that concerned his conscience; but +for declining the king's authority, and maintaining treasonable +opinions, as the statutes libelled on made it treason not to answer +the king or his council in any matter which should be demanded. + +It was one of the most monstrous iniquities of a monstrous +jurisprudence, the Scots criminal law, to debar a prisoner from any +defence inconsistent with the indictment; that is, he might deny a +fact, but was not permitted to assert that, being true, it did not +warrant the conclusion of guilt. Arnot, 354. + +[454] Laing, iv. 20; Kirkton, p. 141. "Whoso shall compare," he says, +"this set of bishops with the old bishops established in the year +1612, shall find that these were but a sort of pigmies compared with +our new bishops." + +[455] Laing, iv. 32. Kirkton says 300. P. 149. These were what were +called the young ministers, those who had entered the church since +1649. They might have kept their cures by acknowledging the authority +of bishops. + +[456] Laing, iv. 116. + +[457] _Life of James II._, i. 710. + +[458] _Cloud of Witnesses_, passim; De Foe's _Hist. of Church of +Scotland_; Kirkton; Laing; Scott's notes in _Minstrelsy of Scottish +Border_, etc., etc. + +[459] The practice observed in summoning or dissolving the great +national assembly of the church of Scotland, which, according to the +presbyterian theory, can only be done by its own authority, is rather +amusing. "The moderator dissolves the assembly in the name of the Lord +Jesus Christ, the head of the church; and, by the same authority, +appoints another to meet on a certain day of the ensuing year. The +lord high commissioner then dissolves the assembly in the name of the +king, and appoints another to meet on the same day." Arnot's _Hist. of +Edinburgh_, p. 269. I am inclined to suspect, but with no very certain +recollection of what I have been told, that Arnot has misplaced the +order in which this is done, and that the lord commissioner is the +first to speak. In the course of debate, however, no regard is paid to +him, all speeches being addressed to the moderator. + +[460] The king's instructions by no means warrant the execution, +especially with all its circumstances of cruelty, but they contain one +unfortunate sentence: "If Maclean [sic], of Glencoe, and that tribe +can be well separated from the rest, it will be a proper vindication +of the public justice to extirpate that seat of thieves." This was +written, it is to be remembered, while they were exposed to the +penalties of the law for the rebellion. But the massacre would never +have been perpetrated, if Lord Breadalbane and the master of Stair, +two of the worst men in Scotland, had not used the foulest arts to +effect it. It is an apparent great reproach to the government of +William, that they escaped with impunity; but political necessity +bears down justice and honour. Laing, iv. 246; Carstares' _State +Papers_. + +[461] Those who took the oaths were allowed to continue in their +churches without compliance with the presbyterian discipline, and many +more who not only refused the oaths but prayed openly for James and +his family. Carstares, p. 40. But in 1693 an act for settling the +peace and quiet of the church ordains, that no person be admitted or +continued to be a minister or preacher unless he have taken the oath +of allegiance, and subscribed the assurance that he held the king to +be _de facto et de jure_, and also the confession of faith; and that +he owns and acknowledges presbyterian church-government to be the only +government of this church, and that he will submit thereto and concur +therewith, and will never endeavour, directly or indirectly, the +prejudice or subversion thereof. _Id._ 715; Laing, iv. 255. + +This act seems not to have been strictly insisted upon; and the +episcopal clergy, though their advocates did not forget to raise a cry +of persecution, which was believed in England, are said to have been +treated with singular favour. De Foe challenges them to show any one +minister that ever was deposed for not acknowledging the church, if at +the same time he offered to acknowledge the government and take the +oaths; and says they have been often challenged on this head. _Hist. +of Church of Scotland_, p. 319. In fact, a statute was passed in 1695, +which confirmed all ministers who would qualify themselves by taking +the oaths: and no less than 116 (according to Laing, iv. 259) did so +continue; nay, De Foe reckons 165 at the time of the union. P. 320. + +The rigid presbyterians inveighed against any toleration, as much as +they did against the king's authority over their own church. But the +government paid little attention to their bigotry; besides the +above-mentioned episcopal clergymen, those who seceded from the +church, though universally jacobites, and most dangerously so, were +indulged with meeting-houses in all towns; and by an act of the queen +(10 Anne, c. 7) obtained a full toleration, on condition of praying +for the royal family, with which they never complied. It was thought +necessary to put them under some fresh restrictions in 1748, their +zeal for the Pretender being notorious and universal, by an act 21 +Geo. II., c. 34; which has very properly been repealed after the +motive for it had wholly ceased, and even at first was hardly +reconcilable with the general principles of religious liberty; though +it ill becomes those to censure it who vindicate the penal laws of +Elizabeth against popery. + +[462] Archbishop Tenison said, in the debates on the union, he thought +the narrow notions of all churches had been their ruin, and that he +believed the church of Scotland to be as true a protestant church as +the church of England, though he could not say it was as perfect. +Carstares, 759. This sort of language was encouraging; but the +exclusive doctrine, or _jus divinum_, was sure to retain many +advocates, and has always done so. Fortunately for Great Britain, it +has not had the slightest effect on the laity in modern times. + + + + +CHAPTER XVIII + +ON THE CONSTITUTION OF IRELAND + + +_Ancient state of Ireland._--The antiquities of Irish history, +imperfectly recorded, and rendered more obscure by controversy, seem +hardly to belong to our present subject. But the political order or +state of society among that people at the period of Henry II.'s +invasion must be distinctly apprehended and kept in mind, before we +can pass a judgment upon, or even understand, the course of succeeding +events, and the policy of the English government in relation to that +island. + +It can hardly be necessary to mention (the idle traditions of a +derivation from Spain having long been exploded) that the Irish are +descended from one of those Celtic tribes which occupied Gaul and +Britain some centuries before the Christian era. Their language +however is so far dissimilar from that spoken in Wales, though +evidently of the same root, as to render it probable that the +emigration, whether from this island or from Armorica, was in a remote +age; while its close resemblance to that of the Scottish Highlanders, +which hardly can be called another dialect, as unequivocally +demonstrates a nearer affinity of the two nations. It seems to be +generally believed, though the antiquaries are far from unanimous, +that the Irish are the parent tribe, and planted their colony in +Scotland since the commencement of our era. + +About the end of the eighth century, some of those swarms of +Scandinavian descent which were poured out in such unceasing and +irresistible multitudes on France and Britain, began to settle on the +coasts of Ireland. These colonists were known by the name of Ostmen, +or men from the east, as in France they were called Normans from their +northern origin. They occupied the sea-coast from Antrim easterly +round to Limerick; and by them the principal cities of Ireland were +built. They waged war for some time against the aboriginal Irish in +the interior; but, though better acquainted with the arts of civilised +life, their inferiority in numbers caused them to fail at length in +this contention; and the practical invasions from their brethren in +Norway becoming less frequent in the eleventh and twelfth centuries, +they had fallen into a state of dependence on the native princes. + +The island was divided into five provincial kingdoms, Leinster, +Munster, Ulster, Connaught, and Meath; one of whose sovereigns was +chosen king of Ireland in some general meeting, probably of the +nobility or smaller chieftains, and of the prelates. But there seems +to be no clear tradition as to the character of this national +assembly, though some maintain it to have been triennially held. The +monarch of the island had tributes from the inferior kings, and a +certain supremacy, especially in the defence of the country against +invasion; but the constitution was of a federal nature, and each was +independent in ruling his people, or in making war on his neighbours. +Below the kings were the chieftains of different septs or families, +perhaps in one or two degrees of subordination, bearing a relation, +which may be loosely called feudal, to each other, and to the +Crown.[463] + +These chieftainships, and perhaps even the kingdoms themselves, though +not partible, followed a very different rule of succession than that +of primogeniture. They were subject to the law of tanistry, of which +the principle is defined to be, that the demesne lands and dignity of +chieftainship descended to the eldest and most worthy of the same +blood; these epithets not being used, we may suppose, synonymously, +but in order to indicate that the preference given to seniority was to +be controlled by a due regard to desert. No better mode, it is +evident, of providing for a perpetual supply of those civil quarrels, +in which the Irish are supposed to place so much of their enjoyment, +could have been devised. Yet, as these grew sometimes a little too +frequent, it was not unusual to elect a tanist, or reversionary +successor, in the lifetime of the reigning chief, as has been the +practice of more civilised nations. An infant was never allowed to +hold the sceptre of an Irish kingdom, but was necessarily postponed to +his uncle or other kinsman of mature age; as was the case also in +England, even after the consolidation of the Anglo-Saxon +monarchy.[464] + +The land-owners, who did not belong to the noble class, bore the same +name as their chieftain, and were presumed to be of the same lineage. +But they held their estates by a very different and an extraordinary +tenure, that of Irish gavel-kind. On the decease of a proprietor, +instead of an equal partition among his children, as in the gavel-kind +of English law, the chief of the sept, according to the generally +received explanation, made, or was entitled to make, a fresh division +of all the lands within his district; allotting to the heirs of the +deceased a portion of the integral territory along with the other +members of the tribe. It seems impossible to conceive that these +partitions were renewed on every death of one of the sept. But they +are asserted to have at least taken place so frequently as to produce +a continual change of possession. The policy of this custom doubtless +sprung from too jealous a solicitude as to the excessive inequality of +wealth, and from the habit of looking on the tribe as one family of +occupants, not wholly divested of its original right by the necessary +allotment of lands to particular cultivators. It bore some degree of +analogy to the institution of the year of Jubilee in the Mosaic code, +and what may be thought more immediate, was almost exactly similar to +the rule of succession which is laid down in the ancient laws of +Wales.[465] + +_Rude state of society._--In the territories of each sept, judges +called Brehons, and taken out of certain families, sat with primeval +simplicity upon turfen benches in some conspicuous situation, to +determine controversies. Their usages are almost wholly unknown; for +what have been published as fragments of the Brehon law seem open to +great suspicion at least of being interpolated.[466] It is notorious +that, according to the custom of many states in the infancy of +civilisation, the Irish admitted the composition or fine for murder, +instead of capital punishment; and this was divided, as in other +countries, between the kindred of the slain and the judge. + +In the twelfth century it is evident that the Irish nation had made +far less progress in the road of improvement than any other of Europe +in circumstance of climate and position so little unfavourable. They +had no arts that deserve the name, nor any commerce, their best line +of sea-coast being occupied by the Norwegians. They had no fortified +towns, nor any houses or castles of stone; the first having been +erected at Tuam a very few years before the invasion of Henry.[467] +Their conversion to Christianity indeed, and the multitude of +cathedral and conventual churches erected throughout the island, had +been the cause, and probably the sole cause, of the rise of some +cities, or villages with that name, such as Armagh, Cashel, and Trim. +But neither the chiefs nor the people loved to be confined within +their precincts, and chose rather to dwell in scattered cabins amidst +the free solitude of bogs and mountains. As we might expect, their +qualities were such as belong to man by his original nature, and which +he displays in all parts of the globe where the state of society is +inartificial: they were gay, generous, hospitable, ardent in +attachment and hate, credulous of falsehood, prone to anger and +violence, generally crafty and cruel. With these very general +attributes of a barbarous people, the Irish character was +distinguished by a peculiar vivacity of imagination, an enthusiasm +and impetuosity of passion, and a more than ordinary bias towards a +submissive and superstitious spirit in religion. + +This spirit may justly be traced in a great measure to the virtues and +piety of the early preachers of the gospel in that country. Their +influence, though at this remote age, and with our imperfect +knowledge, it may hardly be distinguishable amidst the licentiousness +and ferocity of a rude people, was necessarily directed to counteract +those vices, and cannot have failed to mitigate and compensate their +evil. In the seventh and eighth centuries, while a total ignorance +seemed to overspread the face of Europe, the monasteries and schools +of Ireland preserved, in the best manner they could, such learning as +had survived the revolutions of the Roman world. But the learning of +monasteries had never much efficacy in dispelling the ignorance of the +laity; and indeed, even in them, it had decayed long before the +twelfth century. The clergy were respected and numerous, the bishops +alone amounting at one time to no less than 300;[468] and it has been +maintained by our most learned writers, that they were wholly +independent of the see of Rome till, a little before the English +invasion, one of their primates thought fit to solicit the pall from +thence on his consecration, according to the discipline long practised +in other western churches. + +It will be readily perceived that the government of Ireland must have +been almost entirely aristocratical, and not very unlike that of the +feudal confederacies in France during the ninth and tenth centuries. +It was perhaps still more oppressive. The ancient condition of the +common people of Ireland, says Sir James Ware, was very little +different from slavery.[469] Unless we believe this condition to have +been greatly deteriorated under the rule of their native chieftains +after the English settlement, for which there seems no good reason, we +must give little credit to the fanciful pictures of prosperity and +happiness in that period of aboriginal independence, which the Irish, +in their discontent with later times, have been apt to draw. They had, +no doubt, like all other nations, good and wise princes, as well as +tyrants and usurpers. But we find by their annals that, out of two +hundred ancient kings, of whom some brief memorials are recorded, not +more than thirty came to a natural death;[470] while, for the later +period, the oppression of the Irish chieftains, and of those +degenerate English who trod in their steps, and emulated the vices +they should have restrained, is the one constant theme of history. +Their exactions kept the peasants in hopeless poverty, their tyranny +in perpetual fear. The chief claimed a right of taking from his +tenants provisions for his own use at discretion, or of sojourning in +their houses. This was called coshery, and is somewhat analogous to +the royal prerogative of purveyance. A still more terrible oppression +was the quartering of the lords' soldiers on the people, sometimes +mitigated by a composition, called by the Irish bonaght.[471] For the +perpetual warfare of these petty chieftains had given rise to the +employment of mercenary troops, partly natives, partly from Scotland, +known by the uncouth names of Kerns and Gallowglasses, who proved the +scourge of Ireland down to its final subjugation by Elizabeth. + +This unusually backward condition of society furnished but an +inauspicious presage for the future. Yet we may be led by the analogy +of other countries to think it probable that, if Ireland had not +tempted the cupidity of her neighbours, there would have arisen in the +course of time some Egbert or Harold Harfager to consolidate the +provincial kingdoms into one hereditary monarchy; which, by the +adoption of better laws, the increase of commerce, and a frequent +intercourse with the chief courts of Europe, might have taken as +respectable a station as that of Scotland in the commonwealth of +Christendom. If the two islands had afterwards become incorporated +through intermarriage of their sovereigns, as would very likely have +taken place, it might have been on such conditions of equality as +Ireland, till lately, has never known; and certainly without that long +tragedy of crime and misfortune which her annals unfold. + +_Invasion of Henry II._--The reduction of Ireland, at least in name, +under the dominion of Henry II. was not achieved by his own efforts. +He had little share in it beyond receiving the homage of Irish +princes, and granting charters to his English nobility. Strongbow, +Lacy, Fitz-Stephen, were the real conquerors, through whom alone any +portion of Irish territory was gained by arms or treaty; and, as they +began the enterprise without the king, they carried it on also for +themselves, deeming their swords a better security than his charters. +This ought to be kept in mind, as revealing the secret of the English +government over Ireland, and furnishing a justification for what has +the appearance of a negligent abandonment of its authority. The few +barons, and other adventurers, who, by dint of forces hired by +themselves, and, in some instances, by conventions with the Irish, +settled their armed colonies in the island, thought they had done +much for Henry II. in causing his name to be acknowledged, his +administration to be established in Dublin, and in holding their lands +by his grant. They claimed in their turn, according to the practice of +all nations and the principles of equity, that those who had borne the +heat of the battle, should enjoy the spoil without molestation. Hence, +the enormous grants of Henry and his successors, though so often +censured for impolicy, were probably what they could scarce avoid; +and, though not perhaps absolutely stipulated as the price of titular +sovereignty, were something very like it.[472] But what is to be +censured, and what at all hazards they were bound to refuse, was the +violation of their faith to the Irish princes, in sharing among these +insatiable barons their ancient territories; which, setting aside the +wrong of the first invasion, were protected by their homage and +submission, and sometimes by positive conventions. The whole island, +in fact, with the exception of the county of Dublin and the maritime +towns, was divided, before the end of the thirteenth century, and most +of it in the twelfth, among ten English families: Earl Strongbow, who +had some colour of hereditary title, according to our notions of law, +by his marriage with the daughter of Dermot, king of Leinster, +obtaining a grant of that province; Lacy acquiring Meath, which was +not reckoned a part of Leinster, in the same manner; the whole of +Ulster being given to De Courcy; the whole of Connaught to De Burgh; +and the rest to six others. These, it must be understood, they were to +hold in a sort of feudal suzerainty, parcelling them among their +tenants of English race, and expelling the natives, or driving them +into the worst parts of the country by an incessant warfare. + +_Forms of English constitution established._--The Irish chieftains, +though compelled to show some exterior signs of submission to Henry, +never thought of renouncing their own authority or the customs of +their forefathers; nor did he pretend to interfere with the government +of their septs, content with their promise of homage and tribute, +neither of which were afterwards paid. But in those parts of Ireland +which he reckoned his own, it was his aim to establish the English +laws, to render the lesser island, as it were, a counterpart in all +its civil constitution, and mirror of the greater. The colony from +England was already not inconsiderable, and likely to increase; the +Ostmen, who inhabited the maritime towns, came very willingly, as all +settlers of Teutonic origin have done, into the English customs and +language; and upon this basis, leaving the accession of the aboriginal +people to future contingencies, he raised the edifice of the Irish +constitution. He gave charters of privilege to the chief towns, began +a division into counties, appointed sheriffs and judges of assize to +administer justice, erected supreme courts at Dublin, and perhaps +assembled parliaments.[473] His successors pursued the same course of +policy; the great charter of liberties, as soon as granted by John at +Runnymede, was sent over to Ireland; and the whole common law, with +all its forms of process, and every privilege it was deemed to convey, +became the birthright of the Anglo-Irish colonists.[474] + +These had now spread over a considerable part of the island. Twelve +counties appear to have been established by John, comprehending most +of Leinster and Munster; while the two ambitious families of Courcy +and De Burgh encroached more and more on the natives in the other +provinces.[475] But the same necessity, which gratitude for the +services, or sense of the power of the great families had engendered, +for rewarding them by excessive grants of territory, led to other +concessions that rendered them almost independent of the +monarchy.[476] The franchise of a county palatine gave a right of +exclusive civil and criminal jurisdiction; so that the king's writ +should not run, nor his judges come within it, though judgment in its +courts might be reversed by writ of error in the king's bench. The +lord might enfeoff tenants to hold by knight's service of himself; he +had almost all regalian rights; the lands of those attainted for +treason escheated to him; he acted in everything rather as one of the +great feudatories of France or Germany than a subject of the English +Crown. Such had been Chester, and only Chester, in England; but in +Ireland this dangerous independence was permitted to Strongbow in +Leinster, to Lacy in Meath, and at a later time to the Butlers and +Geraldines in parts of Munster. Strongbow's vast inheritance soon +fell to five sisters, who took to their shares, with the same palatine +rights, the counties of Carlow, Wexford, Kilkenny, Kildare, and the +district of Leix, since called the Queen's County.[477] In all these +palatinates, forming by far the greater portion of the English +territories, the king's process had its course only within the lands +belonging to the church.[478] The English aristocracy of Ireland, in +the thirteenth and fourteenth centuries, bears a much closer analogy +to that of France in rather an earlier period than anything which the +history of this island can show. + +Pressed by the inroads of these barons, and despoiled frequently of +lands secured to them by grant or treaty, the native chiefs had +recourse to the throne for protection, and would in all likelihood +have submitted without repining to a sovereign who could have afforded +it.[479] But John and Henry III., in whose reigns the independence of +the aristocracy was almost complete, though insisting by writs and +proclamations on a due observance of the laws, could do little more +for their new subjects, who found a better chance of redress in +standing on their own defence. The powerful septs of the north enjoyed +their liberty. But those of Munster and Leinster, intermixed with the +English, and encroached upon from every side, were the victims of +constant injustice; and abandoning the open country for bog and +mountain pasture, grew more poor and barbarous in the midst of the +general advance of Europe. Many remained under the yoke of English +lords, and in a worse state than that of villenage, because still less +protected by the tribunals of justice. The Irish had originally +stipulated with Henry II. for the use of their own laws.[480] They +were consequently held beyond the pale of English justice, and +regarded as aliens at the best, sometimes as enemies, in our courts. +Thus, as by the Brehon customs murder was only punished by a fine, it +was not held felony to kill one of Irish race, unless he had conformed +to the English law.[481] Five septs, to which the royal families of +Ireland belonged, the names of O'Neal, O'Connor, O'Brien, +O'Malachlin, and MacMurrough, had the special immunity of being within +the protection of our law, and it was felony to kill one of them. I do +not know by what means they obtained this privilege; for some of these +were certainly as far from the king's obedience as any in +Ireland.[482] But besides these a vast number of charters of +denization were granted to particular persons of Irish descent from +the reign of Henry II. downwards, which gave them and their posterity +the full birthrights of English subjects; nor does there seem to have +been any difficulty in procuring these.[483] It cannot be said, +therefore, that the English government, or those who represented it in +Dublin, displayed any reluctance to emancipate the Irish from +thraldom. Whatever obstruction might be interposed to this was from +that assembly whose concurrence was necessary to every general +measure, the Anglo-Irish parliament. Thus, in 1278, we find the first +instance of an application from the community of Ireland, as it is +termed, but probably from some small number of septs dwelling among +the colony, that they might be admitted to live by the English law, +and offering 8000 marks for this favour. The letter of Edward I. to +the justiciary of Ireland on this is sufficiently characteristic both +of his wisdom and his rapaciousness. He is satisfied of the expediency +of granting the request, provided it can be done with the general +consent of the prelates and nobles of Ireland; and directs the +justiciary, if he can obtain that concurrence, to agree with the +petitioners for the highest fine he can obtain, and for a body of good +and stout soldiers.[484] But this necessary consent of the aristocracy +was withheld. Excuses were made to evade the king's desire. It was +wholly incompatible with their systematic encroachments on their +Irish neighbours to give them the safeguard of the king's writ for +their possessions. The Irish renewed their supplication more than +once, both to Edward I. and Edward III.; they found the same readiness +in the English court; they sunk at home through the same unconquerable +oligarchy.[485] It is not to be imagined that the entire Irishry +partook in this desire of renouncing their ancient customs. Besides +the prejudices of nationality, there was a strong inducement to +preserve the Brehon laws of tanistry, which suited better a warlike +tribe than the hereditary succession of England. But it was the +unequivocal duty of the legislature to avail itself of every token of +voluntary submission; which, though beginning only with the subject +septs of Leinster, would gradually incorporate the whole nation in a +common bond of co-equal privileges with their conquerors. + +_Degeneracy of English settlers._--Meanwhile, these conquerors were +themselves brought under a moral captivity of the most disgraceful +nature; and, not as the rough soldier of Rome is said to have been +subdued by the art and learning of Greece, the Anglo-Norman barons, +that had wrested Ireland from the native possessors, fell into their +barbarous usages, and emulated the vices of the vanquished. This +degeneracy of the English settlers began very soon, and continued to +increase for several ages. They intermarried with the Irish; then +connected themselves with them by the national custom of fostering, +which formed an artificial relationship of the strictest nature;[486] +they spoke the Irish language; they affected the Irish dress and +manner of wearing the hair;[487] they even adopted, in some instances, +Irish surnames; they harassed their tenants with every Irish exaction +and tyranny; they administered Irish law, if any at all; they became +chieftains rather than peers; and neither regarded the king's summons +to his parliaments, nor paid any obedience to his judges.[488] Thus +the great family of De Burgh or Burke, in Connaught, fell off almost +entirely from subjection; nor was that of the Earls of Desmond, a +younger branch of the house of Geraldine or Fitzgerald, much less +independent of the Crown; though by the title it enjoyed, and the +palatine franchises granted to it by Edward III. over the counties of +Limerick and Kerry, it seemed to keep up more show of English +allegiance. + +The regular constitution of Ireland was, as I have said, as nearly as +possible a counterpart of that established in this country. The +administration was vested in an English justiciary or lord deputy, +assisted by a council of judges and principal officers, mixed with +some prelates and barons, but subordinate to that of England, wherein +sat the immediate advisers of the sovereign. The courts of chancery, +king's bench, common pleas, and exchequer, were the same in both +countries; but writs of error lay from judgments given in the second +of these to the same court in England. For all momentous purposes, as +to grant a subsidy, or enact a statute, it was as necessary to summon +a parliament in the one island as in the other. An Irish parliament +originally, like an English one, was but a more numerous council, to +which the more distant as well as the neighbouring barons were +summoned, whose consent, though dispensed with in ordinary acts of +state, was both the pledge and the condition of their obedience to +legislative provisions. In 1295, the sheriff of each county and +liberty is directed to return two knights to a parliament held by +Wogan, an active and able deputy.[489] The date of the admission of +burgesses cannot be fixed with precision; but it was probably not +earlier than the reign of Edward III. They appear in 1341; and the +Earl of Desmond summoned many deputies from corporations to his rebel +convention held at Kilkenny in the next year.[490] The Commons are +mentioned as an essential part of parliament in an ordinance of 1359; +before which time, in the opinion of Lord Coke, "the conventions in +Ireland were not so much parliaments as assemblies of great men."[491] +This, as appears, is not strictly correct; but in substance they were +perhaps little else long afterwards. + +The earliest statutes on record are of the year 1310; and from that +year they are lost till 1429, though we know many parliaments to have +been held in the meantime, and are acquainted by other means with +their provisions. Those of 1310 bear witness to the degeneracy of the +English lords, and to the laudable zeal of a feeble government for the +reformation of their abuses. They begin with an act to restrain great +lords from taking of prises, lodging, and sojourning with the people +of the country against their will. "It is agreed and assented," the +act proceeds, "that no such prises shall be henceforth made without +ready payment and agreement, and that none shall harbour or sojourn at +the house of any other by such malice against the consent of him which +is owner of the house to destroy his goods; and, if any shall do the +same, such prises, and such manner of destruction, shall be holden for +open robbery, and the king shall have the suit thereof, if others will +not, nor dare not sue. It is agreed also, that none shall keep idle +people nor kearn (foot-soldiers) in time of peace to live upon the +poor of the country, but that those which will have them, shall keep +them at their own charges, so that their free tenants, nor farmers, +nor other tenants, be not charged with them." The statute proceeds to +restrain great lords or others, except such as have royal franchises, +from giving protections, which they used to compel the people to +purchase; and directs that there shall be commissions of assize and +gaol delivery through all the counties of Ireland.[492] + +These regulations exhibit a picture of Irish miseries. The barbarous +practices of coshering and bonaght, the latter of which was generally +known in later times by the name of coyne and livery, had been +borrowed from those native chieftains whom our modern Hibernians +sometimes hold forth as the paternal benefactors of their +country.[493] It was the crime of the Geraldines and the De Courcys to +have retrograded from the comparative humanity and justice of England, +not to have deprived the people of freedom and happiness they had +never known. These degenerate English, an epithet by which they are +always distinguished, paid no regard to the statutes of a parliament +which they had disdained to attend, and which could not render itself +feared. We find many similar laws in the fifteenth century, after the +interval which I have noticed in the printed records. And, in the +intervening period, a parliament held by Lionel Duke of Clarence, +second son of Edward III., at Kilkenny, in 1367, the most numerous +assembly that had ever met in Ireland, was prevailed upon to pass a +very severe statute against the insubordinate and degenerate +colonists. It recites that the English of the realm of Ireland were +become mere Irish in their language, names, apparel, and manner of +living, that they had rejected the English laws, and allied themselves +by intermarriage with the Irish. It prohibits, under the penalties of +high treason, or at least of forfeiture of lands, all these +approximations to the native inhabitants, as well as the connections +of fostering and gossipred. The English are restrained from permitting +the Irish to grace their lands, from presenting them to benefices, or +receiving them into religious houses, and from entertaining their +bards. On the other hand, they are forbidden to make war upon their +Irish neighbours without the authority of the state. And, to enforce +better these provisions, the king's sheriffs are empowered to enter +all franchises for the apprehension of felons or traitors.[494] + +_Disorderly state of the island._--This statute, like all others +passed in Ireland, so far from pretending to bind the Irish, regarded +them not only as out of the king's allegiance, but as perpetually +hostile to his government. They were generally denominated the Irish +enemy. This doubtless was not according to the policy of Henry II., +nor of the English government a considerable time after his reign. Nor +can it be said to be the fact, though from some confusion of times the +assertion is often made, that the island was not subject, in a general +sense, to that prince and to the three next kings of England. The +English were settled in every province; an imperfect division of +counties and administration of justice subsisted; and even the Irish +chieftains, though ruling their septs by the Brehon law, do not appear +in that period to have refused the acknowledgment of the king's +sovereignty. But compelled to defend their lands against perpetual +aggression, they justly renounced all allegiance to a government which +could not redeem the original wrong of its usurpation by the benefits +of protection. They became gradually stronger; they regained part of +their lost territories; and after the era of 1315, when Edward Bruce +invaded the kingdom with a Scots army, and, though ultimately +defeated, threw the government into a disorder from which it never +recovered, their progress was so rapid, that in the space of thirty or +forty years, the northern provinces, and even part of the southern, +were entirely lost to the Crown of England.[495] + +It is unnecessary in so brief a sketch to follow the unprofitable +annals of Ireland in the fourteenth and fifteenth centuries. Amidst +the usual variations of war, the English interests were continually +losing ground. Once only Richard II. appeared with a very powerful +army, and the princes of Ireland crowded round his throne to offer +homage.[496] But, upon his leaving the kingdom, they returned of +course to their former independence and hostility. The long civil wars +of England in the next century consummated the ruin of its power over +the sister island. The Irish possessed all Ulster, and shared +Connaught with the degenerate Burkes. The sept of O'Brien held their +own district of Thomond, now the county of Clare. A considerable part +of Leinster was occupied by other independent tribes; while, in the +south, the Earls of Desmond, lords either by property or territorial +jurisdiction of the counties of Kerry and Limerick, and in some +measure of those of Cork and Waterford, united the turbulence of +English barons with the savage manners of Irish chieftains; ready to +assume either character as best suited their rapacity and ambition; +reckless of the king's laws or his commands, but not venturing, nor +upon the whole, probably wishing, to cast off the name of his +subjects. The elder branch of their house, the Earls of Kildare, and +another illustrious family, the Butlers, Earls of Ormond, were +apparently more steady in their obedience to the Crown; yet, in the +great franchises of the latter, comprising the counties of Kilkenny +and Tipperary, the king's writ had no course; nor did he exercise any +civil or military authority but by the permission of this mighty +peer.[497] + +_English Law confined to the pale._--Thus, in the reign of Henry VII., +when the English authority over Ireland had reached its lowest point, +it was, with the exception of a very few sea-ports, to all intents +confined to the four counties of the English pale, a name not older +perhaps than the preceding century; those of Dublin, Louth, Kildare, +and Meath, the latter of which at that time included West Meath. But +even in these there were extensive marches, or frontier districts, the +inhabitants of which were hardly distinguishable from the Irish, and +paid them a tribute, called black-rent; so that the real supremacy of +the English laws was not probably established beyond the two first of +these counties, from Dublin to Dundalk on the coast, and for about +thirty miles inland.[498] From this time, however, we are to date its +gradual recovery. The more steady councils and firmer prerogative of +the Tudor kings left little chance of escape from their authority +either for rebellious peers of English race, or the barbarous +chieftains of Ireland. + +I must pause at this place to observe that we shall hardly find in the +foregoing sketch of Irish history, during the period of the +Plantagenet dynasty (nor am I conscious of having concealed any thing +essential), that systematic oppression and misrule which is every day +imputed to the English nation and its government. The policy of our +kings appears to have generally been wise and beneficent; but it is +duly to be remembered that those very limitations of their prerogative +which constitute liberty, must occasionally obstruct the execution of +the best purposes; and that the co-ordinate powers of parliament, so +justly our boast, may readily become the screen of private tyranny and +inveterate abuse. This incapacity of doing good as well as harm has +produced, comparatively speaking, little mischief in Great Britain; +where the aristocratical element of the constitution is neither so +predominant, nor so much in opposition to the general interest, as it +may be deemed to have been in Ireland. But it is manifestly absurd to +charge the Edwards and Henrys, or those to whom their authority was +delegated at Dublin, with the crimes they vainly endeavoured to +chastise, much more to erect either the wild barbarians of the north, +the O'Neals and O'Connors, or the degenerate houses of Burke and +Fitzgerald, into patriot assertors of their country's welfare. The +laws and liberties of England were the best inheritance to which +Ireland could attain; the sovereignty of the English crown her only +shield against native or foreign tyranny. It was her calamity that +these advantages were long withheld; but the blame can never fall upon +the government of this island. + +In the contest between the houses of York and Lancaster, most of the +English colony in Ireland had attached themselves to the fortunes of +the White Rose; they even espoused the two pretenders who put in +jeopardy the crown of Henry VII.; and became, of course, obnoxious to +his jealousy, though he was politic enough to forgive in appearance +their disaffection. But, as Ireland had for a considerable time rather +served the purposes of rebellious invaders than of the English +monarchy, it was necessary to make her subjection, at least so far as +the settlers of the pale were concerned, more than a word. This +produced the famous statute of Drogheda in 1495, known by the name of +Poyning's law, from the lord deputy through whose vigour and prudence +it was enacted. It contains a variety of provisions to restrain the +lawlessness of the Anglo-Irish within the pale (for to no others could +it immediately extend), and to confirm the royal sovereignty. All +private hostilities without the deputy's licence were declared +illegal; but to excite the Irish to war was made high treason. Murders +were to be prosecuted according to law, and not in the manner of the +natives, by pillaging, or exacting a fine from the sept of the slayer. +The citizens or freemen of towns were prohibited from receiving wages +or becoming retainers of lords and gentlemen; and, to prevent the +ascendency of the latter class, none who had not served +apprenticeships were to be admitted as aldermen or freemen of +corporations. The requisitions of coyne and livery, which had +subsisted in spite of the statutes of Kilkenny, were again forbidden, +and those statutes were renewed and confirmed. The principal officers +of state and the judges were to hold their patents during pleasure, +"because of the great inconveniences that had followed from their +being for term of life, to the king's grievous displeasure." A still +more important provision, in its permanent consequence, was made, by +enacting that all statutes lately made in England be deemed good and +effectual in Ireland. It has been remarked that the same had been done +by an Irish act of Edward IV. Some question might also be made, +whether the word "lately" was not intended to limit this acceptation +of English law. But in effect this enactment has made an epoch in +Irish jurisprudence; all statutes made in England prior to the +eighteenth year of Henry VII. being held equally valid in Ireland, +while none of later date have any operation, unless specially adopted +by its parliament; so that the law of the two countries has begun to +diverge from that time, and after three centuries has been in several +respects differently modified. + +But even these articles of Poyning's law are less momentous than one +by which it is peculiarly known. It is enacted that no parliament +shall in future be holden in Ireland, till the king's lieutenant shall +certify to the king, under the great seal, the causes and +considerations, and all such acts as it seems to them ought to be +passed thereon, and such be affirmed by the king and his council, and +his licence to hold a parliament be obtained. Any parliament holden +contrary to this form and provision should be deemed void. Thus, by +securing the initiative power to the English council, a bridle was +placed in the mouths of every Irish parliament. It is probable also +that it was designed as a check on the lord-deputies, sometimes +powerful Irish nobles, whom it was dangerous not to employ, but still +more dangerous to trust. Whatever might be its motives, it proved in +course of time the great means of preserving the subordination of an +island, which, from the similarity of constitution, and the high +spirit of its inhabitants, was constantly panting for an independence +which her more powerful neighbour neither desired nor dared to +concede.[499] + +_Royal authority revives under Henry VIII._--No subjects of the Crown +in Ireland enjoyed such influence at this time as the Earls of +Kildare; whose possessions lying chiefly within the pale, they did not +affect an ostensible independence, but generally kept in their hands +the chief authority of government, though it was the policy of the +English court, in its state of weakness, to balance them in some +measure by the rival family of Butler. But the self-confidence with +which this exaltation inspired the chief of the former house laid him +open to the vengeance of Henry VIII.; he affected, while lord-deputy, +to be surrounded by Irish lords, to assume their wild manners, and to +intermarry his daughters with their race. The counsellors of English +birth or origin dreaded this suspicious approximation to their +hereditary enemies; and Kildare, on their complaint, was compelled to +obey his sovereign's order by repairing to London. He was committed to +the Tower; on a premature report that he had suffered death, his son, +a young man to whom he had delegated the administration, took up arms +under the rash impulse of resentment; the primate was murdered by his +wild followers, but the citizens of Dublin and the reinforcements sent +from England suppressed this hasty rebellion, and its leader was sent +a prisoner to London. Five of his uncles, some of them not concerned +in the treason, perished with him on the scaffold; his father had been +more fortunate in a natural death; one sole surviving child of twelve +years old, who escaped to Flanders, became afterwards the stock from +which the great family of the Geraldines was restored.[500] + +The chieftains of Ireland were justly attentive to the stern and +systematic despotism which began to characterise the English +government, displayed, as it thus was, in the destruction of an +ancient and loyal house. But their intimidation produced contrary +effects; they became more ready to profess allegiance and to put on +the exterior badges of submission; but more jealous of the Crown in +their hearts, more resolute to preserve their independence, and to +withstand any change of laws. Thus, in the latter years of Henry, +after the northern Irish had been beaten by an able deputy, Lord +Leonard Grey, and the lordship of Ireland, the title hitherto borne by +the successors of Henry II., had been raised by act of parliament to +the dignity of a kingdom,[501] the native chiefs came in and +submitted; the Earl of Desmond, almost as independent as any of the +natives, attended parliament, from which his ancestors had for some +ages claimed a dispensation; several peerages were conferred, some of +them on the old Irish families; fresh laws were about the same time +enacted to establish the English dress and language, and to keep the +colonists apart from Irish intercourse;[502] and after a disuse of two +hundred years, the authority of government was nominally recognised +throughout Munster and Connaught.[503] Yet we find that these +provinces were still in nearly the same condition as before; the +king's judges did not administer justice in them, the old Brehon +usages continued to prevail even in the territories of the new peers, +though their primogenitary succession was evidently incompatible with +Irish tanistry. A rebellion of two septs in Leinster under Edward VI. +led to a more complete reduction of their districts, called Leix and +O'Fally, which in the next reign were made shireland, by the names of +King's and Queen's County.[504] But, at the accession of Elizabeth, it +was manifest that an arduous struggle would ensue between law and +liberty; the one too nearly allied to cool-blooded oppression, the +other to ferocious barbarism. + +It may be presumed, as has been already said, from the analogy of +other countries, that Ireland, if left to herself, would have settled +in time under some one line of kings, and assumed, like Scotland, much +of the feudal character, the best transitional state of a monarchy +from rudeness and anarchy to civilisation. And, if the right of female +succession had been established, it might possibly have been united to +the English Crown on a juster footing, and with far less of oppression +or bloodshed than actually took place. But it was too late to dream of +what might have been: in the middle of the sixteenth century Ireland +could have no reasonable prospect of independence; nor could that +independence have been any other than the most savage liberty, perhaps +another denomination of serviture. It was doubtless for the interest +of that people to seek the English constitution, which, at least in +theory, was entirely accorded to their country, and to press with +spontaneous homage round the throne of Elizabeth. But this was not the +interest of their ambitious chieftains, whether of Irish or English +descent, of a Slanes O'Neil, an Earl of Tyrone, an Earl of Desmond. +Their influence was irresistible among a nation ardently sensible to +the attachments of clanship, averse to innovation, and accustomed to +dread and hate a government that was chiefly known by its severities. +But the unhappy alienation of Ireland from its allegiance in part of +the queen's reign would probably not have been so complete, or at +least led to such permanent mischiefs, if the ancient national +animosities had not been exasperated by the still more invincible +prejudices of religion. + +_Resistance of Irish to act of supremacy._--Henry VIII. had no sooner +prevailed on the Lords and Commons of England to renounce their +spiritual obedience to the Roman see, and to acknowledge his own +supremacy, than, as a natural consequence, he proceeded to establish +it in Ireland. In the former instance, many of his subjects, and even +his clergy, were secretly attached to the principles of the +reformation; as many others were jealous of ecclesiastical wealth, or +eager to possess it. But in Ireland the reformers had made no +progress; it had been among the effects of the pernicious separation +of the two races, that the Irish priests had little intercourse with +their bishops, who were nominated by the king, so that their synods +are commonly recited to have been holden _inter Anglicos_; the bishops +themselves were sometimes intruded by violence, more often +dispossessed by it; a total ignorance and neglect prevailed in the +church; and it is even found impossible to recover the succession of +names in some sees.[505] In a nation so ill predisposed, it was +difficult to bring about a compliance with the king's demand of +abjuring their religion; ignorant, but not indifferent, the clergy, +with Cromer the primate at their head, and most of the Lords and +Commons, in a parliament held at Dublin in 1536, resisted the act of +supremacy; which was nevertheless ultimately carried by the force of +government. Its enemies continued to withstand the new schemes of +reformation, more especially in the next reign, when they went +altogether to subvert the ancient faith. As it appeared dangerous to +summon a parliament, the English liturgy was ordered by a royal +proclamation; but Dowdall, the new primate, as stubborn an adherent of +the Romish church as his predecessor, with most of the other bishops +and clergy, refused obedience; and the reformation was never legally +established in the short reign of Edward. His eldest sister's +accession reversed of course, what had been done, and restored +tranquillity in ecclesiastical matters; for the protestants were too +few to be worth persecution, nor were even those molested who fled to +Ireland from the fires of Smithfield. + +_Protestant church established by Elizabeth._--Another scene of +revolution ensued in a very few years. Elizabeth having fixed the +protestant church on a stable basis in England, sent over the Earl of +Sussex to hold an Irish parliament in 1560. The disposition of such an +assembly might be presumed hostile to the projected reformations; but, +contrary to what had occurred on this side of the channel, though the +peers were almost uniformly for the old religion, a large majority of +the bishops are said to have veered round with the times, and +supported, at least by conformity and acquiescence, the creed of the +English court. In the House of Commons, pains had been taken to secure +a majority; ten only out of twenty counties, which had at that time +been formed, received the writ of summons; and the number of +seventy-six representatives of the Anglo-Irish people was made up by +the towns, many of them under the influence of the Crown, some perhaps +containing a mixture of protestant population. The English laws of +supremacy and uniformity were enacted in nearly the same words; and +thus the common prayer was at once set up instead of the mass, but +with a singular reservation, that in those parts of the country where +the minister had no knowledge of the English language, he might read +the service in Latin. All subjects were bound to attend the public +worship of the church, and every other was interdicted.[506] + +There were doubtless three arguments in favour of this compulsory +establishment of the protestant church, which must have appeared so +conclusive to Elizabeth and her council, that no one in that age could +have disputed them without incurring, among other hazards, that of +being accounted a lover of unreasonable paradoxes. The first was, that +the protestant religion being true, it was the queen's duty to take +care that her subjects should follow no other; the second, that, being +an absolute monarch, or something like it, and a very wise princess, +she had a better right to order what doctrine they should believe, +than they could have to choose for themselves; the third, that +Ireland, being as a handmaid, and a conquered country, must wait, in +all important matters, on the pleasure of the greater island, and be +accommodated to its revolutions. And, as it was natural that the queen +and her advisers should not reject maxims which all the rest of the +world entertained, merely because they were advantageous to +themselves, we need not perhaps be very acrimonious in censuring the +laws whereon the church of Ireland is founded. But it is still equally +true that they involve a principle essentially unjust, and that they +have enormously aggravated, both in the age of Elizabeth and long +afterwards, the calamities and the disaffection of Ireland. An +ecclesiastical establishment, that is, the endowment and privileges of +a particular religious society, can have no advantages (relatively at +least to the community where it exists), but its tendency to promote +in that community good order and virtue, religious knowledge and +edification. But, to accomplish this end in any satisfactory manner, +it must be their church, and not that merely of the government; it +should exist for the people, and in the people, and with the people. +This indeed is so manifest, that the government of Elizabeth never +contemplated the separation of a great majority as licensed dissidents +from the ordinances established for their instruction. It was +undoubtedly presumed, as it was in England, that the church and +commonwealth, according to Hooker's language, were to be two +denominations of the same society; and that every man in Ireland who +appertained to the one ought to embrace, and in due season would +embrace, the communion of the other. There might be ignorance, there +might be obstinacy, there might be feebleness of conscience for a +time; and perhaps some connivance would be shown to these; but that +the prejudices of a majority should ultimately prevail so as to +determine the national faith, that it should even obtain a legitimate +indulgence for its own mode of worship, was abominable before God, and +incompatible with the sovereign authority. + +This sort of reasoning, half bigotry, half despotism, was nowhere so +preposterously displayed as in Ireland. The numerical majority is not +always to be ascertained with certainty; and some regard may fairly, +or rather necessarily, be had to rank, to knowledge, to concentration. +But in that island, the disciples of the reformation were in the most +inconsiderable proportion among the Anglo-Irish colony, as well as +among the natives; their church was a government without subjects, a +college of shepherds without sheep. I am persuaded that this was not +intended nor expected to be a permanent condition; but such were the +difficulties which the state of that unhappy nation presented, or such +the negligence of its rulers, that scarce any pains were taken in the +age of Elizabeth, nor indeed in subsequent ages, to win the people's +conviction or to eradicate their superstitions, except by penal +statutes and the sword. The Irish language was universally spoken +without the pale; it had even made great progress within it; the +clergy were principally of that nation; yet no translation of the +scriptures, the chief means through which the reformation had been +effected in England and Germany, nor even of the regular liturgy, was +made into that tongue; nor was it possible, perhaps, that any popular +instruction should be carried far in Elizabeth's reign, either by +public authority, or by the ministrations of the reformed clergy. Yet +neither among the Welsh nor the Scots Highlanders, though Celtic +tribes, and not much better in civility of life at that time than the +Irish, was the ancient religion long able to withstand the sedulous +preachers of reformation. + +It is evident from the history of Elizabeth's reign, that the forcible +dispossession of the catholic clergy, and their consequent activity in +deluding a people too open at all times to their counsels, aggravated +the rebellious spirit of the Irish, and rendered their obedience to +the law more unattainable. But, even independently of this motive, the +Desmonds and Tyrones would have tried, as they did, the chances of +insurrection, rather than abdicate their unlicensed but ancient +chieftainship. It must be admitted that, if they were faithless in +promises of loyalty, the Crown's representatives in Ireland set no +good example; and, when they saw the spoliations of property by +violence or pretext of law, the sudden executions on alleged treasons, +the breaches of treaty, sometimes even the assassinations, by which a +despotic policy went onward in its work of subjugation, they did but +play the usual game of barbarians in opposing craft and perfidy, +rather more gross perhaps and notorious, to the same engines of a +dissembling government.[507] Yet if we can put any trust in our own +testimonies, the great families were, by mismanagement and dissension, +the curse of their vassals. Sir Henry Sidney represents to the queen, +in 1567, the wretched condition of the southern and western counties +in the vast territories of the Earls of Ormond, Desmond, and +Clanricarde.[508] "An unmeasurable tract," he says, "is now waste and +uninhabited, which of late years was well tilled and pastured." "A +more pleasant nor a more desolate land I never saw than from Youghall +to Limerick."[509] "So far hath that policy, or rather lack of policy, +in keeping dissension among them prevailed, as now, albeit all that +are alive would become honest and live in quiet, yet are there not +left alive in those two provinces the twentieth person necessary to +inhabit the same."[510] Yet this was but the first scene of calamity. +After the rebellion of the last Earl of Desmond, the counties of Cork +and Kerry, his ample patrimony, were so wasted by war and military +executions, and famine and pestilence, that, according to a +contemporary writer, who expresses the truth with hyperbolical energy, +"the land itself, which before those wars was populous, well +inhabited, and rich in all the good blessings of God, being plenteous +of corn, full of cattle, well stored with fruit and sundry other good +commodities, is now become waste and barren, yielding no fruits, the +pastures no cattle, the fields no corn, the air no birds, the seas, +though full of fish, yet to them yielding nothing. Finally, every way +the curse of God was so great, and the land so barren both of man and +beast, that whosoever did travel from the one end unto the other of +all Munster, even from Waterford to the head of Limerick, which is +about six-score miles, he should not meet any man, woman, or child, +saving in towns and cities; nor yet see any beast but the very wolves, +the foxes, and other like ravening beasts."[511] The severity of Sir +Arthur Grey, at this time deputy, was such that Elizabeth was assured +he had left little for her to reign over but ashes and carcasses; and, +though not by any means of too indulgent a nature, she was induced to +recall him.[512] His successor, Sir John Perrott, who held the +viceroyalty only from 1584 to 1587, was distinguished for a sense of +humanity and justice, together with an active zeal for the enforcement +of law. Sheriffs were now appointed for the five counties into which +Connaught had some years before been parcelled; and even for Ulster, +all of which, except Antrim and Down, had hitherto been undivided, as +well as ungoverned.[513] Yet even this apparently wholesome innovation +aggravated at first the servitude of the natives, whom the new +sheriffs were prone to oppress.[514] Perrott, the best of Irish +governors, soon fell a sacrifice to a court intrigue and the queen's +jealousy; and the remainder of her reign was occupied with almost +unceasing revolts of the Earl of Tyrone, head of the great sept of +O'Neil in Ulster, instigated by Rome and Spain, and endangering, far +more than any preceding rebellion, her sovereignty over Ireland. + +The old English of the pale were little more disposed to embrace the +reformed religion, or to acknowledge the despotic principles of a +Tudor administration, than the Irish themselves; and though they did +not join in the rebellions of those they so much hated, the queen's +deputies had sometimes to encounter a more legal resistance. A new +race of colonists had begun to appear in their train, eager for +possessions, and for the rewards of the Crown, contemptuous of the +natives, whether aboriginal or of English descent, and in consequence +the objects of their aversion or jealousy.[515] Hence in a parliament +summoned by Sir Henry Sidney in 1569, the first after that which had +reluctantly established the protestant church, a strong country party, +as it may be termed, was formed in opposition to the Crown. They +complained with much justice of the management by which irregular +returns of members had been made; some from towns not incorporated, +and which had never possessed the elective right; some self-chosen +sheriffs and magistrates; some mere English strangers, returned for +places which they had never seen. The judges, on reference to their +opinion, declared the elections illegal in the two former cases: but +confirmed the non-resident burgesses, which still left a majority for +the court. + +The Irish patriots, after this preliminary discussion, opposed a new +tax upon wines, and a bill for the suspension of Poyning's law. +Hooker, an Englishman, chosen for Athenry, to whose account we are +chiefly indebted for our knowledge of these proceedings, sustained the +former in that high tone of a prerogative lawyer which always best +pleased his mistress. "Her majesty," he said, "of her own royal +authority, might and may establish the same without any of your +consents, as she hath already done the like in England; saving of her +courtesy, it pleaseth her to have it pass with your own consents by +order of law, that she might thereby have the better trial and +assurance of your dutifulness and good-will towards her." This +language from a stranger, unusual among a people proud of their +birthright in the common constitution, and little accustomed even to +legitimate obedience, raised such a flame that the house was +adjourned; and it was necessary to protect the utterer of such +doctrines by a guard. The duty on wines, laid aside for the time, was +carried in a subsequent session in the same year; and several other +statutes were enacted, which, as they did not affect the pale, may +possibly have encountered no opposition. A part of Ulster, forfeited +by Slanes O'Neil, a rebel almost as formidable in the first years of +this reign as his kinsman Tyrone was near its conclusion, was vested +in the Crown; and some provisions were made for the reduction of the +whole island into shires. Connaught, in consequence, which had passed +for one county, was divided into five.[516] + +In Sir Henry Sidney's second government, which began in 1576, the pale +was excited to a more strenuous resistance, by an attempt to subvert +their liberties. It had long been usual to obtain a sum of money for +the maintenance of the household and of the troops, by an assessment +settled between the council and principal inhabitants of each +district. This, it was contended by the government, was instead of the +contribution of victuals which the queen, by her prerogative of +purveyance, might claim at a fixed rate, much lower than the current +price.[517] It was maintained on the other side to be a voluntary +benevolence. Sidney now devised a plan to change it for a cess or +permanent composition for every plough-land, without regard to those +which claimed exemption from the burthen of purveyance; and imposed +this new tax by order of council, as sufficiently warrantable by the +royal prerogative. The landowners of the pale remonstrated against +such a violation of their franchises, and were met by the usual +arguments. They appealed to the text of the laws; the deputy replied +by precedents against law. "Her majesty's prerogative," he said, "is +not limited by Magna Charta, nor found in _Littleton's Tenures_, nor +written in the books of Assizes, but registered in the remembrances of +her majesty's exchequer, and remains in the rolls of records of the +Tower."[518] It was proved, according to him, by the most ancient and +credible records in the realm, that such charges had been imposed from +time to time, sometimes by the name of cess, sometimes by other names, +and more often by the governor and council, with such of the nobility +as came on summons, than by parliament. These irregularities did not +satisfy the gentry of the pale, who refused compliance with the +demand, and still alleged that it was contrary both to reason and law +to impose any charge upon them without parliament or grand council. A +deputation was sent to England in the name of all the subjects of the +English pale. Sidney was not backward in representing their behaviour +as the effect of disaffection; nor was Elizabeth likely to recede, +where both her authority and her revenue were apparently concerned. +But, after some demonstrations of resentment in committing the +delegates to the Tower, she took alarm at the clamours of their +countrymen; and, aware that the King of Spain was ready to throw +troops into Ireland, desisted with that prudence which always kept her +passion in command, accepting a voluntary composition for seven years +in the accustomed manner.[519] + +James I. ascended the throne with as great advantages in Ireland as in +his other kingdoms. That island was already pacified by the submission +of Tyrone; and all was prepared for a final establishment of the +English power upon the basis of equal laws and civilised customs; a +reformation which in some respects the king was not ill fitted to +introduce. His reign is perhaps on the whole the most important in the +constitutional history of Ireland, and that from which the present +scheme of society in that country is chiefly to be deduced. + +1. The laws of supremacy and uniformity, copied from those of England, +were incompatible with any exercise of the Roman catholic worship, or +with the admission of any members of that church into civil trust. It +appears indeed that they were by no means strictly executed during the +queen's reign; yet the priests were of course excluded, so far as the +English authority prevailed, from their churches and benefices; the +former were chiefly ruined; the latter fell to protestant strangers, +or to conforming ministers of native birth, dissolute and ignorant, as +careless to teach as the people were predetermined not to listen.[520] +The priests, many of them, engaged in a conspiracy with the court of +Spain against the queen and her successor, and all deeming themselves +unjustly and sacrilegiously despoiled, kept up the spirit of +disaffection, or at least of resistance to religious innovation, +throughout the kingdom.[521] The accession of James seemed a sort of +signal for casting off the yoke of heresy; in Cork, Waterford, and +other cities, the people, not without consent of the magistrates, rose +to restore the catholic worship; they seized the churches, ejected the +ministers, marched in public processions, and shut their gates against +the lord deputy. He soon reduced them to obedience; but almost the +whole nation was of the same faith, and disposed to struggle for a +public toleration. This was beyond every question their natural right, +and as certainly was it the best policy of England to have granted it; +but the king-craft and the priest-craft of the day taught other +lessons. Priests were ordered by proclamation to quit the realm; the +magistrates and chief citizens of Dublin were committed to prison for +refusing to frequent the protestant church. The gentry of the pale +remonstrated at the court of Westminster; and, though their delegates +atoned for their self-devoted courage by imprisonment, the secret +menace of expostulation seems to have produced, as usual, some effect, +in a direction to the lord deputy that he should endeavour to +conciliate the recusants by instruction. These penalties of recusancy, +from whatever cause, were very little enforced; but the catholics +murmured at the oath of supremacy, which shut them out from every +distinction: though here again the execution of the law was sometimes +mitigated, they justly thought themselves humiliated, and the +liberties of their country endangered, by standing thus at the mercy +of the Crown. And it is plain that, even within the pale, the +compulsory statutes were at least far better enforced than under the +queen; while in those provinces within which the law now first began +to have its course, the difference was still more acutely +perceived.[522] + +2. _English law established throughout Ireland._--The first care of +the new administration was to perfect the reduction of Ireland into a +civilised kingdom. Sheriffs were appointed throughout Ulster; the +territorial divisions of counties and baronies were extended to the +few districts that still wanted them; the judges of assize went their +circuits everywhere; the customs of tanistry and gavelkind were +determined by the court of king's bench to be void; the Irish lords +surrendered their estates to the Crown, and received them back by the +English tenures of knight-service or socage; an exact account was +taken of the lands each of these chieftains possessed, that he might +be invested with none but those he occupied; while his tenants, +exempted from those uncertain Irish exactions, the source of their +servitude and misery, were obliged only to an annual quit-rent, and +held their own lands by a free tenure. The king's writ was obeyed, at +least in profession, throughout Ireland; after four centuries of +lawlessness and misgovernment, a golden period was anticipated by the +English courtiers; nor can we hesitate to recognise the influence of +enlightened, and sometimes of benevolent minds, in the scheme of +government now carried into effect.[523] But two unhappy maxims +debased their motives, and discredited their policy; the first, that +none but the true religion, or the state's religion, could be suffered +to exist in the eye of the law; the second, that no pretext could be +too harsh or iniquitous to exclude men of a different race or +erroneous faith from their possessions. + +3. _Settlements of English in Munster, Ulster, and other parts._--The +suppression of Slanes O'Neil's revolt in 1567 seems to have suggested +the thought, or afforded the means, of perfecting the conquest of +Ireland by the same methods that had been used to commence it, an +extensive plantation of English colonists. The law of forfeiture came +in very conveniently to further this great scheme of policy. O'Neil +was attainted in the parliament of 1569; the territories which +acknowledged him as chieftain, comprising a large part of Down and +Antrim, were vested in the Crown; and a natural son of Sir Thomas +Smith, secretary of state, who is said to have projected this +settlement, was sent with a body of English to take possession of the +lands thus presumed in law to be vacant. This expedition however +failed of success; the native occupants not acquiescing in this +doctrine of our lawyers.[524] But fresh adventurers settled in +different parts of Ireland; and particularly after the Earl of +Desmond's rebellion in 1583, whose forfeiture was reckoned at 574,628 +Irish acres, though it seems probable that this is more than double +the actual confiscation.[525] These lands in the counties of Cork and +Kerry, left almost desolate by the oppression of the Geraldines +themselves, and the far greater cruelty of the government in subduing +them, were parcelled out among English undertakers at low rents, but +on condition of planting eighty-six families on an estate of 12,000 +acres; and in like proportion for smaller possessions. None of the +native Irish were to be admitted as tenants; but neither this nor the +other conditions were strictly observed by the undertakers, and the +colony suffered alike by their rapacity and their neglect.[526] The +oldest of the second race of English families in Ireland are found +among the descendants of these Munster colonists. We find among them +also some distinguished names, that have left no memorial in their +posterity; Sir Walter Raleigh, who here laid the foundation of his +transitory success, and one not less in glory, and hardly less in +misfortune, Edmund Spenser. In a country house once belonging to the +Desmonds, on the banks of the Mulla, near Doneraile, the three first +books of the _Faery Queen_ were written; and here too the poet awoke +to the sad realities of life, and has left us, in his _Account of the +State of Ireland_, the most full and authentic document that +illustrates its condition. This treatise abounds with judicious +observations; but we regret the disposition to recommend an extreme +severity in dealing with the native Irish, which ill becomes the +sweetness of his muse. + +The two great native chieftains of the north, the Earls of Tyrone and +Tyrconnel, a few years after the king's accession, engaged, or were +charged with having engaged, in some new conspiracy, and flying from +justice, were attainted of treason. Five hundred thousand acres in +Ulster were thus forfeited to the Crown; and on this was laid the +foundation of that great colony, which has rendered that province, +from being the seat of the wildest natives, the most flourishing, the +most protestant, and the most enlightened part of Ireland. This +plantation, though projected no doubt by the king and by Lord Bacon, +was chiefly carried into effect by the lord deputy, Sir Arthur +Chichester, a man of great capacity, judgment, and prudence. He caused +surveys to be taken of the several counties, fixed upon proper places +for building castles or founding towns, and advised that the lands +should be assigned, partly to English or Scots undertakers, partly to +servitors of the Crown, as they were called, men who had possessed +civil or military offices in Ireland, partly to the old Irish, even +some of those who had been concerned in Tyrone's rebellion. These and +their tenants were exempted from the oath of supremacy imposed on the +new planters. From a sense of the error committed in the queen's time +by granting vast tracts to single persons, the lands were distributed +in three classes, of 2000, 1500, and 1000 English acres; and in every +county one-half of the assignments was to the smallest, the rest to +the other two classes. Those who received 2000 acres were bound within +four years to build a castle and bawn, or strong court-yard; the +second class within two years to build a stone or brick house with a +bawn; the third class a bawn only. The first were to plant on their +lands within three years forty-eight able men, eighteen years old or +upwards, born in England or the inland parts of Scotland; the others +to do the same in proportion to their estates. All the grantees were +to reside within five years, in person or by approved agents, and to +keep sufficient store of arms; they were not to alienate their lands +without the king's licence, nor to let them for less than twenty-one +years; their tenants were to live in houses built in the English +manner, and not dispersed, but in villages. The natives held their +lands by the same conditions, except that of building fortified +houses; but they were bound to take no Irish exactions from their +tenants, nor to suffer the practice of wandering with their cattle +from place to place. In this manner were these escheated lands of +Ulster divided among a hundred and four English and Scots undertakers, +fifty-six servitors, and two hundred and eighty-six natives. All lands +which through the late anarchy and change of religion had been lost to +the church were restored; and some further provision was made for the +beneficed clergy. Chichester, as was just, received an allotment in a +far ampler measure than the common servants of the Crown.[527] + +This noble design was not altogether completed according to the +platform. The native Irish, to whom some regard was shown by these +regulations, were less equitably dealt with by the colonists, and by +those other adventurers whom England continually sent forth to enrich +themselves and maintain her sovereignty. Pretexts were sought to +establish the Crown's title over the possessions of the Irish; they +were assailed through a law which they had but just adopted, and of +which they knew nothing, by the claims of a litigious and encroaching +prerogative, against which no prescription could avail, nor any plea +of fairness and equity obtain favour in the sight of English-born +judges. Thus, in the King and Queen's counties, and in those of +Leitrim, Longford, and Westmeath, 385,000 acres were adjudged to the +Crown, and 66,000 in that of Wicklow. The greater part was indeed +regranted to the native owners on a permanent tenure; and some apology +might be found for this harsh act of power in the means it gave of +civilising those central regions, always the shelter of rebels and +robbers; yet this did not take off the sense of forcible spoliation, +which every foreign tyranny renders so intolerable. Surrenders were +extorted by menaces; juries refusing to find the Crown's title were +fined by the council; many were dispossessed without any compensation, +and sometimes by gross perjury, sometimes by barbarous cruelty. It is +said that in the county of Longford the Irish had scarcely one-third +of their former possessions assigned to them, out of three-fourths +which had been intended by the king. Those who had been most faithful, +those even who had conformed to the protestant church, were little +better treated than the rest. Hence, though in many new plantations +great signs of improvement were perceptible, though trade and tillage +increased, and towns were built, a secret rankling for those injuries +was at the heart of Ireland; and in these two leading grievances, the +penal laws against recusants, and the inquisition into defective +titles, we trace, beyond a shadow of doubt, the primary source of the +rebellion in 1641.[528] + +4. _Constitution of Irish parliament._--Before the reign of James, +Ireland had been regarded either as a conquered country, or as a mere +colony of English, according to the persons or the provinces which +were in question. The whole island now took a common character, that +of a subordinate kingdom, inseparable from the English Crown, and +dependent also, at least as was taken for granted by our lawyers, on +the English legislature; but governed after the model of our +constitution, by nearly the same laws, and claiming entirely the same +liberties. It was a natural consequence, that an Irish parliament +should represent, or affect to represent, every part of the kingdom. +None of Irish blood had ever sat, either lords or commoners, till near +the end of Henry VIII.'s reign. The representation of the twelve +counties, into which Munster and part of Leinster were divided, and of +a few towns, which existed in the reign of Edward III., if not later, +was reduced by the defection of so many English families to the limits +of the four shires of the pale.[529] The old counties, when they +returned to their allegiance under Henry VIII., and those afterwards +formed by Mary and Elizabeth, increased the number of the Commons: +though in that of 1567, as has been mentioned, the writs for some of +them were arbitrarily withheld. The two queens did not neglect to +create new boroughs, in order to balance the more independent +representatives of the old Anglo-Irish families by the English +retainers of the court. Yet it is said that in seventeen counties out +of thirty-two, into which Ireland was finally parcelled, there was no +town that returned burgesses to parliament before the reign of James +I., and the whole number in the rest was but about thirty.[530] He +created at once forty new boroughs, or possibly rather more; for the +number of the Commons, in 1613, appears to have been 232.[531] It was +several times afterwards augmented, and reached its complement of 300 +in 1692.[532] These grants of the elective franchise were made, not +indeed improvidently, but with very sinister intents towards the +freedom of parliament; two-thirds of an Irish House of Commons, as it +stood in the eighteenth century, being returned with the mere farce of +election by wretched tenants of the aristocracy. + +The province of Connaught, with the adjoining county of Clare, was +still free from the intrusion of English colonists. The Irish had +complied, both under Elizabeth and James, with the usual conditions of +surrendering their estates to the Crown in order to receive them back +by a legal tenure. But, as these grants, by some negligence, had not +been duly enrolled in Chancery (though the proprietors had paid large +fees for that security), the council were not ashamed to suggest, or +the king to adopt, an iniquitous scheme of declaring the whole country +forfeited, in order to form another plantation as extensive as that of +Ulster. The remonstrances of those whom such a project threatened put +a present stop to it; and Charles, on ascending the throne, found it +better to hear the proposals of his Irish subjects for a composition. +After some time, it was agreed between the court and the Irish agents +in London, that the kingdom should voluntarily contribute L120,000 in +three years by equal payments, in return for certain graces, as they +were called, which the king was to bestow. These went to secure the +subject's title to his lands against the Crown after sixty years' +possession, and gave the people of Connaught leave to enrol their +grants, relieving also the settlers in Ulster or other places from the +penalties they had incurred by similar neglect. The abuses of the +council-chamber in meddling with private causes, the oppression of +the court of wards, the encroachments of military authority, and +excesses of the soldiers were restrained. A free trade with the king's +dominions or those of friendly powers was admitted. The recusants were +allowed to sue for livery of their estates in the court of wards, and +to practise in courts of law, on taking an oath of mere allegiance +instead of that of supremacy. Unlawful exactions and severities of the +clergy were prohibited. These reformations of unquestionable and +intolerable evils, as beneficial as those contained nearly at the same +moment in the Petition of Right, would have saved Ireland long ages of +calamity, if they had been as faithfully completed as they seemed to +be graciously conceded. But Charles I. emulated, on this occasion, the +most perfidious tyrants. It had been promised by an article in these +graces, that a parliament should be held to confirm them. Writs of +summons were accordingly issued by the lord deputy; but with no +consideration of that fundamental rule established by Poyning's law, +that no parliament should be held in Ireland until the king's licence +be obtained. This irregularity was of course discovered in England, +and the writs of summons declared to be void. It would have been easy +to remedy this mistake, if such it were, by proceeding in the regular +course with a royal licence. But this was withheld; no parliament was +called for a considerable time; and, when the three years had elapsed +during which the voluntary contribution had been payable, the king +threatened to straiten his graces if it were not renewed.[533] + +He had now placed in the vice-royalty of Ireland that star of +exceeding brightness, but sinister influence, the willing and able +instrument of despotic power, Lord Strafford. In his eyes the country +he governed belonged to the Crown by right of conquest; neither the +original natives, nor even the descendants of the conquerors +themselves, possessing any privileges which could interfere with its +sovereignty. He found two parties extremely jealous of each other, yet +each loth to recognise an absolute prerogative, and thus in some +measure having a common cause. The protestants, not a little from +bigotry, but far more from a persuasion that they held their estates +on the tenure of a rigid religious monopoly, could not endure to hear +of a toleration of popery, which, though originally demanded, was not +even mentioned in the king's graces; and disapproved the indulgence +shown by those graces to recusants, which is said to have been +followed by an impolitic ostentation of the Romish worship.[534] They +objected to a renewal of the contribution both as the price of this +dangerous tolerance of recusancy, and as debarring the protestant +subjects of their constitutional right to grant money only in +parliament. Wentworth, however, insisted upon its payment for another +year, at the expiration of which a parliament was to be called.[535] + +The king did not come without reluctance into this last measure, +hating, as he did, the very name of parliament; but the lord deputy +confided in his own energy to make it innoxious and serviceable. They +conspired together how to extort the most from Ireland, and concede +the least; Charles, in truth, showing a most selfish indifference to +anything but his own revenue, and a most dishonourable unfaithfulness +to his word.[536] The parliament met in 1634, with a strong desire of +insisting on the confirmation of the graces they had already paid for; +but Wentworth had so balanced the protestant and recusant parties, +employed so skilfully the resources of fair promises and intimidation, +that he procured six subsidies to be granted before a prorogation, +without any mutual concession from the Crown.[537] It had been agreed +that a second session should be held for confirming the graces; but in +this, as might be expected, the supplies having been provided, the +request of both houses that they might receive the stipulated reward +met with a cold reception; and ultimately the most essential articles, +those establishing a sixty years' prescription against the Crown, and +securing the titles of proprietors in Clare and Connaught, as well as +those which relieved the catholics in the court of wards from the oath +of supremacy, were laid aside. Statutes, on the other hand, were +borrowed from England, especially that of uses, which cut off the +methods they had hitherto employed for evading the law's +severity.[538] + +Strafford had always determined to execute the project of the late +reign with respect to the western counties. He proceeded to hold an +inquisition in each county of Connaught, and summoned juries in order +to preserve a mockery of justice in the midst of tyranny. They were +required to find the king's title to all the lands, on such evidence +as could be found and was thought fit to be laid before them; and were +told that what would be best for their own interests would be to +return such a verdict as the king desired, what would be best for his, +to do the contrary; since he was able to establish it without their +consent, and wished only to invest them graciously with a large part +of what they now unlawfully withheld from him. These menaces had their +effect in all counties except that of Galway, where a jury stood out +obstinately against the Crown, and being in consequence, as well as +the sheriff, summoned to the castle in Dublin, were sentenced to an +enormous fine. Yet the remonstrances of the western proprietors were +so clamorous that no steps were immediately taken for carrying into +effect the designed plantation; and the great revolutions of Scotland +and England which soon ensued gave another occupation to the mind of +Lord Strafford.[539] It has never been disputed that a more uniform +administration of justice in ordinary cases, a stricter coercion of +outrage, a more extensive commerce, evidenced by the augmentation of +customs, above all the foundation of the great linen manufacture in +Ulster, distinguished the period of his government.[540] But it is +equally manifest that neither the reconcilement of parties, nor their +affection to the English Crown, could be the result of his arbitrary +domination; and that, having healed no wound he found, he left others +to break out after his removal. The despotic violence of this minister +towards private persons, and those of great eminence, is in some +instances well known by the proceedings on his impeachment, and in +others is sufficiently familiar by our historical and biographical +literature. It is indeed remarkable that we find among the objects of +his oppression and insult all that most illustrates the contemporary +annals of Ireland, the venerable learning of Usher, the pious +integrity of Bedell, the experienced wisdom of Cork, and the early +virtue of Clanricarde. + +The parliament assembled by Strafford in 1640 began with loud +professions of gratitude to the king for the excellent governor he had +appointed over them; they voted subsidies to pay a large army raised +to serve against the Scots, and seemed eager to give every +manifestation of zealous loyalty.[541] But after their prorogation, +and during the summer of that year, as rapid a tendency to a great +revolution became visible as in England; the Commons, when they met +again, seemed no longer the same men; and, after the fall of their +great viceroy, they coalesced with his English enemies to consummate +his destruction. Hate smothered by fear, but inflamed by the same +cause, broke forth in a remonstrance of the Commons, presented through +a committee, not to the king, but a superior power, the long +parliament of England. The two houses united to avail themselves of +the advantageous moment, and to extort, as they very justly might, +from the necessities of Charles that confirmation of his promises +which had been refused in his prosperity. Both parties, catholic as +well as protestant, acted together in this national cause, shunning +for the present to bring forward those differences which were not the +less implacable for being thus deferred. The catalogue of temporal +grievances was long enough to produce this momentary coalition: it +might be groundless in some articles, it might be exaggerated in more, +it might in many be of ancient standing; but few can pretend to deny +that it exhibits a true picture of the misgovernment of Ireland at all +times, but especially under the Earl of Strafford. The king, in May +1641, consented to the greater part of their demands; but +unfortunately they were never granted by law.[542] + +But the disordered condition of his affairs gave encouragement to +hopes far beyond what any parliamentary remonstrances could realise; +hopes long cherished when they had seemed vain to the world, but such +as courage, and bigotry, and resentment would never lay aside. The +court of Madrid had not abandoned its connection with the disaffected +Irish, especially of the priesthood; the son of Tyrone, and many +followers of that cause, served in its armies; and there seems much +reason to believe that in the beginning of 1641 the project of +insurrection was formed among the expatriated Irish, not without the +concurrence of Spain, and perhaps of Richelieu.[543] The government +had passed from the vigorous hands of Strafford into those of two +lords justices, Sir William Parsons and Sir John Borlase, men by no +means equal to the critical circumstances wherein they were placed, +though possibly too severely censured by those who do not look at +their extraordinary difficulties with sufficient candour. The primary +causes of the rebellion are not to be found in their supineness or +misconduct, but in the two great sins of the English government; in +the penal laws as to religion which pressed on almost the whole +people, and in the systematic iniquity which despoiled them of their +possessions. They could not be expected to miss such an occasion of +revolt; it was an hour of revolution, when liberty was won by arms, +and ancient laws were set at nought; the very success of their worst +enemies, the covenanters in Scotland, seemed the assurance of their +own victory, as it was the reproach of their submission.[544] + +_Rebellion of 1641._--The rebellion broke out, as is well known, by a +sudden massacre of the Scots and English in Ulster, designed no doubt +by a vindictive and bigoted people to extirpate those races, and, if +contemporary authorities are to be credited, falling little short of +this in its execution. Their evident exaggeration has long been +acknowledged; but possibly the scepticism of later writers has +extenuated rather too much the horrors of this massacre.[545] It was +certainly not the crime of the catholics generally; nor, perhaps, in +the other provinces of Ireland are they chargeable with more cruelty +than their opponents.[546] Whatever may have been the original +intentions of the lords of the pale, or of the Anglo-Irish professing +the old religion in general (which has been a problem in history), a +few months only elapsed before they were almost universally engaged in +the war.[547] The old distinctions of Irish and English blood were +obliterated by those of religion; and it became a desperate contention +whether the majority of the nation should be trodden to the dust by +forfeiture and persecution, or the Crown lose everything beyond a +nominal sovereignty over Ireland. The insurgents, who might once +perhaps have been content with a repeal of the penal laws, grew +naturally in their demands through success, or rather through the +inability of the English government to keep the field, and began to +claim the entire establishment of their religion; terms in themselves +not unreasonable, nor apparently disproportionate to their +circumstances, and which the king was, in his distresses, nearly ready +to concede, but such as never could have been obtained from a third +party, of whom they did not sufficiently think, the parliament and +people of England. The Commons had, at the very beginning of the +rebellion, voted that all the forfeited estates of the insurgents +should be allotted to such as should aid in reducing the island to +obedience; and thus rendered the war desperate on the part of the +Irish.[548] + +_Subjugation of the Irish by Cromwell._--No great efforts were made, +however, for some years; but, after the king's person had fallen into +their hands, the victorious party set themselves in earnest to effect +the conquest of Ireland. This was achieved by Cromwell and his +powerful army after several years, with such bloodshed and rigour +that, in the opinion of Lord Clarendon, the sufferings of that nation, +from the outset of the rebellion to its close, have never been +surpassed but by those of the Jews in their destruction by Titus. + +_Restoration of Charles II._--At the restoration of Charles II. there +were in Ireland two people, one either of native, or old English +blood, the other of recent settlement; one catholic, the other +protestant; one humbled by defeat, the other insolent with victory; +one regarding the soil as his ancient inheritance, the other as his +acquisition and reward. There were three religions; for the Scots of +Ulster and the army of Cromwell had never owned the episcopal church, +which for several years had fallen almost as low as that of Rome. +There were claims, not easily set aside on the score of right, to the +possession of lands, which the entire island could not satisfy. In +England, little more had been necessary than to revive a suspended +constitution: in Ireland, it was something beyond a new constitution +and code of law that was required; it was the titles and boundaries +of each man's private estate that were to be litigated and adjudged. +The episcopal church was restored with no delay, as never having been +abolished by law; and a parliament, containing no catholics and not +many vehement nonconformists, proceeded to the great work of settling +the struggles of opposite claimants, by a fresh partition of the +kingdom.[549] + +_Act of Settlement._--The king had already published a declaration for +the settlement of Ireland, intended as the basis of an act of +parliament. The adventurers, or those who, on the faith of several +acts passed in England in 1642, with the assent of the late king, had +advanced money for quelling the rebellion, in consideration of lands +to be allotted to them in certain stipulated proportions, and who had, +in general, actually received them from Cromwell, were confirmed in +all the lands possessed by them on the 7th of May 1659; and all the +deficiencies were to be supplied before the next year. The army was +confirmed in the estates already allotted for their pay, with an +exception, of church lands, and some others. Those officers who had +served in the royal army against the Irish before 1649 were to be +satisfied for their pay, at least to the amount of five-eighths, out +of lands to be allotted for that purpose. Innocent papists, that is, +such as were not concerned in the rebellion, and whom Cromwell had +arbitrarily transplanted into Connaught, were to be restored to their +estates, and those who possessed them to be indemnified. Those who had +submitted to the peace of 1648, and had not been afterwards in arms, +if they had not accepted lands in Connaught, were also to be restored, +as soon as those who now possessed them should be satisfied for their +expenses. Those who had served the king abroad, and thirty-six +enumerated persons of the Irish nobility and gentry, were to be put on +the same footing as the last. The precedency of restitution, an +important point where the claims exceeded the means of satisfying +them, was to be in the order above specified.[550] + +This declaration was by no means pleasing to all concerned. The loyal +officers, who had served before 1649, murmured that they had little +prospect of more than twelve shillings and sixpence in the pound, +while the republican army of Cromwell would receive the full value. +The Irish were more loud in their complaints; no one was to be held +innocent who had been in the rebel quarters before the cessation of +1643; and other qualifications were added so severe that hardly any +could expect to come within them. In the House of Commons the +majority, consisting very much of the new interests, that is, of the +adventurers and army, were in favour of adhering to the declaration. +In the House of Lords it was successfully urged that, by gratifying +the new men to the utmost, no fund would be left for indemnifying the +loyalists, or the innocent Irish. It was proposed that, if the lands +not yet disposed of should not be sufficient to satisfy all the +interests for which the king had meant to provide by his declaration, +there should be a proportional defalcation out of every class for the +benefit of the whole. These discussions were adjourned to London, +where delegates of the different parties employed every resource of +intrigue at the English court. The king's natural bias towards the +religion of the Irish had rendered him their friend; and they seemed, +at one time, likely to reverse much that had been intended against +them; but their agents grew rash with hope, assumed a tone of +superiority which ill became their condition, affected to justify +their rebellion, and finally so much disgusted their sovereign that he +ordered the act of settlement to be sent back with little alteration, +except the insertion of some more Irish nominees.[551] + +The execution of this act was intrusted to English commissioners, from +whom it was reasonable to hope for an impartiality which could not be +found among the interested classes. Notwithstanding the rigorous +proofs nominally exacted, more of the Irish were pronounced innocent +than the Commons had expected; and the new possessors having the sway +of that assembly, a clamour was raised that the popish interest had +prevailed; some talked of defending their estates by arms, some even +meddled in fanatical conspiracies against the government; it was +insisted that a closer inquisition should be made, and stricter +qualifications demanded. The manifest deficiency of lands to supply +all the claimants for whom the act of settlement provided, made it +necessary to resort to a supplemental measure, called the act of +explanation. The adventurers and soldiers relinquished one-third of +the estates enjoyed by them on the 7th of May 1659. Twenty Irish +nominees were added to those who were to be restored by the king's +favour; but all those who had not already been adjudged innocent, more +than three thousand in number, were absolutely cut off from any hope +of restitution. The great majority of these no question were guilty; +yet they justly complained of this confiscation without trial.[552] +Upon the whole result, the Irish catholics having previously held +about two-thirds of the kingdom, lost more than one-half of their +possessions by forfeiture on account of their rebellion. If we can +rely at all on the calculations, made almost in the infancy of +political arithmetic by one of its most diligent investigators, they +were diminished also by much more than one-third through the +calamities of that period.[553] + +It is more easy to censure the particular inequalities, or even, in +some respects, injustice of the act of settlement, than to point out +what better course was to have been adopted. The readjustment of all +private rights after so entire a destruction of their landmarks could +only be effected by the coarse process of general rules. Nor does it +appear that the catholics, considered as a great mass, could +reasonably murmur against the confiscation of half their estates, +after a civil war wherein it is evident that so large a proportion of +themselves were concerned.[554] Charles, it is true, had not been +personally resisted by the insurgents; but, as chief of England, he +stood in the place of Cromwell, and equally represented the +sovereignty of the greater island over the lesser, which under no +form of government it would concede. + +The catholics, however, thought themselves oppressed by the act of +settlement; and could not forgive the Duke of Ormond for his constant +regard to the protestant interests, and the supremacy of the English +Crown. They had enough to encourage them in the king's bias towards +their religion, which he was able to manifest more openly than in +England. Under the administration of Lord Berkely in 1670, at the time +of Charles's conspiracy with the King of France to subvert religion +and liberty, they began to menace an approaching change, and to aim at +revoking, or materially weakening, the act of settlement. The most +bigoted and insolent of the popish clergy, who had lately rejected +with indignation an offer of more reasonable men to renounce the +tenets obnoxious to civil governments, were countenanced at Dublin; +but the first alarm of the new proprietors, as well as the general +apprehension of the court's designs in England, soon rendered it +necessary to desist from the projected innovations.[555] The next +reign, of course, reanimated the Irish party; a dispensing prerogative +set aside all the statutes; every civil office, the courts of justice, +and the privy council, were filled with catholics; the protestant +soldiers were disbanded; the citizens of that religion were disarmed; +the tithes were withheld from their clergy; they were suddenly reduced +to feel that bitter condition of a conquered and proscribed people, +which they had long rendered the lot of their enemies.[556] From these +enemies, exasperated by bigotry and revenge, they could have nothing +but a full and exceeding measure of retaliation to expect; nor had +they even the last hope that an English king, for the sake of his +Crown and country, must protect those who formed the strongest link +between the two islands. A man violent and ambitious, without superior +capacity, the Earl of Tyrconnel, lord lieutenant in 1687, and +commander of the army, looked only to his master's interests, in +subordination to those of his countrymen, and of his own. It is now +ascertained that, doubtful of the king's success in the struggle for +restoring popery in England, he had made secret overtures to some of +the French agents for casting off all connection with that kingdom, in +case of James's death, and, with the aid of Louis, placing the crown +of Ireland on his own head.[557] + +_War of 1689, and final reduction of Ireland._--The revolution in +England was followed by a war in Ireland of three years' duration, and +a war on both sides, like that of 1641, for self-preservation. In the +parliament held by James at Dublin in 1690, the act of settlement was +repealed, and above 2000 persons attainted by name; both, it has been +said, perhaps with little truth, against the king's will, who dreaded +the impetuous nationality that was tearing away the bulwarks of his +throne.[558] But the magnanimous defence of Derry and the splendid +victory of the Boyne restored the protestant cause; though the Irish, +with the succour of French troops, maintained for two years a gallant +resistance, they could not ultimately withstand the triple superiority +of military talents, resources, and discipline. Their bravery, +however, served to obtain the articles of Limerick on the surrender of +that city; conceded by their noble-minded conqueror, against the +disposition of those who longed to plunder and persecute their fallen +enemy. By the first of these articles, "the Roman catholics of this +kingdom shall enjoy such privileges in the exercise of their religion +as are consistent with the laws of Ireland, or as they did enjoy in +the reign of King Charles II.; and their majesties, as soon as their +affairs will permit them to summon a parliament in this kingdom, will +endeavour to procure the said Roman catholics such further security in +that particular as may preserve them from any disturbance upon the +account of their said religion." The second secures to the inhabitants +of Limerick and other places then in possession of the Irish, and to +all officers and soldiers then in arms, who should return to their +majesties' obedience, and to all such as should be under their +protection in the counties of Limerick, Kerry, Clare, Galway, and +Mayo, all their estates, and all their rights, privileges, and +immunities, which they held in the reign of Charles II., free from all +forfeitures or outlawries incurred by them.[559] + +This second article, but only as to the garrison of Limerick or other +persons in arms, is confirmed by statute some years afterwards.[560] +The first article seems, however, to be passed over. The forfeitures +on account of the rebellion, estimated at 1,060,792 acres, were +somewhat diminished by restitutions to the ancient possessors under +the capitulation; the greater part were lavishly distributed to +English grantees.[561] It appears from hence, that at the end of the +seventeenth century, the Irish or Anglo-Irish catholics could hardly +possess above one-sixth or one-seventh of the kingdom. They were still +formidable from their numbers and their sufferings; and the victorious +party saw no security but in a system of oppression, contained in a +series of laws during the reigns of William and Anne, which have +scarce a parallel in European history, unless it be that of the +protestants in France, after the revocation of the edict of Nantes, +who yet were but a feeble minority of the whole people. No papist was +allowed to keep a school, or to teach in any private houses, except +the children of the family.[562] Severe penalties were denounced +against such as should go themselves or send others for education +beyond seas in the Romish religion; and, on probable information given +to a magistrate, the burthen of proving the contrary was thrown on the +accused; the offence not to be tried by a jury, but by justices at +quarter sessions.[563] Intermarriages between persons of different +religion, and possessing any estate in Ireland, were forbidden; the +children, in case of either parent being protestant, might be taken +from the other, to be educated in that faith.[564] No papist could be +guardian to any child; but the court of chancery might appoint some +relation or other person to bring up the ward in the protestant +religion.[565] The eldest son, being a protestant, might turn his +father's estate in fee simple into a tenancy for life, and thus secure +his own inheritance. But if the children were all papists, the +father's lands were to be of the nature of gavel-kind, and descend +equally among them. Papists were disabled from purchasing lands, +except for terms of not more than thirty-one years, at a rent not less +than two-thirds of the full value. They were even to conform within +six months after any title should accrue by descent, devise, or +settlement, on pain of forfeiture to the next protestant heir; a +provision which seems intended to exclude them from real property +altogether, and to render the others almost supererogatory.[566] Arms, +says the poet, remain to the plundered; but the Irish legislature +knew that the plunder would be imperfect and insecure while arms +remained; no papist was permitted to retain them, and search might be +made at any time by two justices.[567] The bare celebration of +catholic rites was not subjected to any fresh penalties; but regular +priests, bishops, and others claiming jurisdiction, and all who should +come into the kingdom from foreign parts, were banished on pain of +transportation, in case of neglecting to comply, and of high treason +in case of returning from banishment. Lest these provisions should be +evaded, priests were required to be registered; they were forbidden to +leave their own parishes; and rewards were held out to informers who +should detect the violations of these statutes, to be levied on the +popish inhabitants of the country.[568] To have exterminated the +catholics by the sword, or expelled them, like the Moriscoes of Spain, +would have been little more repugnant to justice and humanity, but +incomparably more politic. + +_Dependence of the Irish upon the English parliament._--It may easily +be supposed, that no political privileges would be left to those who +were thus debarred of the common rights of civil society. The Irish +parliament had never adopted the act passed in the 5th of Elizabeth, +imposing the oath of supremacy on the members of the Commons. It had +been full of catholics under the queen and her two next successors. In +the second session of 1641, after the flames of rebellion had +enveloped almost all the island, the House of Commons were induced to +exclude, by a resolution of their own, those who would not take that +oath; a step which can only be judged in connection with the general +circumstances of Ireland at that awful crisis.[569] In the parliament +of 1661, no catholic, or only one, was returned;[570] but the house +addressed the lords justices to issue a commission for administering +the oath of supremacy to all its members. A bill passed the Commons in +1663, for imposing that oath in future, which was stopped by a +prorogation; and the Duke of Ormond seems to have been adverse to +it.[571] An act of the English parliament after the revolution, +reciting that "great disquiet and many dangerous attempts have been +made to deprive their majesties and their royal predecessors of the +said realm of Ireland by the liberty which the popish recusants there +have had and taken to sit and vote in parliament," requires every +member of both houses of parliament to take the new oaths of +allegiance and supremacy, and to subscribe the declaration against +transubstantiation before taking his seat.[572] This statute was +adopted and enacted by the Irish parliament in 1782, after they had +renounced the legislative supremacy of England under which it had been +enforced. The elective franchise, which had been rather singularly +spared in an act of Anne, was taken away from the Roman catholics of +Ireland in 1715; or, as some think, not absolutely till 1727.[573] + +These tremendous statutes had in some measure the effect which their +framers designed. The wealthier families, against whom they were +principally levelled, conformed in many instances to the protestant +church.[574] The catholics were extinguished as a political body; and, +though any willing allegiance to the house of Hanover would have been +monstrous, and it is known that their bishops were constantly +nominated to the pope by the Stuart princes,[575] they did not +manifest at any period, or even during the rebellions of 1715 and +1745, the least movement towards a disturbance of the government. Yet +for thirty years after the accession of George I. they continued to be +insulted in public proceedings under the name of the common enemy, +sometimes oppressed by the enactment of new statutes, or the stricter +execution of the old; till in the latter years of George II. their +peaceable deportment, and the rise of a more generous spirit among the +Irish protestants, not only sheathed the fangs of the law, but +elicited expressions of esteem from the ruling powers, which they +might justly consider as the pledge of a more tolerant policy. The +mere exercise of their religion in an obscure manner had long been +permitted without molestation.[576] + +Thus in Ireland there were three nations, the original natives, the +Anglo-Irish, and the new English; the two former catholic, except some +chiefly of the upper classes, who had conformed to the church; the +last wholly protestant. There were three religions, the Roman +catholic, the established or Anglican, and the presbyterian; more than +one-half of the protestants, according to the computation of those +times, belonging to the latter denomination.[577] These however in a +less degree were under the ban of the law as truly as the catholics +themselves; they were excluded from all civil and military offices by +a test act, and even their religious meetings were denounced by penal +statutes. Yet the House of Commons after the revolution always +contained a strong presbyterian body, and unable, as it seems, to +obtain an act of indemnity for those who had taken commissions in the +militia, while the rebellion of 1715 was raging in Great Britain, had +recourse to a resolution, that whoever should prosecute any dissenter +for accepting such a commission is an enemy to the king and the +protestant interest.[578] They did not even obtain a legal toleration +till 1720.[579] It seems as if the connection of the two islands, and +the whole system of constitutional laws in the lesser, subsisted only +for the sake of securing the privileges and emoluments of a small +number of ecclesiastics, frequently strangers, who rendered very +little return for their enormous monopoly. A great share, in fact, of +the temporal government under George II. was thrown successively into +the hands of two primates, Boulter and Stone; the one a worthy but +narrow-minded man, who showed his egregious ignorance of policy in +endeavouring to promote the wealth and happiness of the people, whom +he at the same time studied to depress and discourage in respect of +political freedom; the other an able, but profligate and ambitious +statesman, whose name is mingled, as an object of odium and enmity, +with the first great struggles of Irish patriotism. + +The new Irish nation, or rather the protestant nation, since all +distinctions of origin have, from the time of the great rebellion, +been merged in those of religion, partook in large measure of the +spirit that was poured out on the advocates of liberty and the +revolution in the sister kingdom. Their parliament was always strongly +whig, and scarcely manageable during the later years of the queen. +They began to assimilate themselves more and more to the English +model, and to cast off by degrees the fetters that galled and degraded +them. By Poyning's celebrated law, the initiative power was reserved +to the English council. This act, at one time popular in Ireland, was +afterwards justly regarded as destructive of the rights of their +parliament, and a badge of the nation's dependence. It was attempted +by the Commons in 1641, and by the catholic confederates in the +rebellion, to procure its repeal; which Charles I. steadily refused, +till he was driven to refuse nothing. In his son's reign, it is said +that "the council framed bills altogether; a negative alone on them +and their several provisoes was left to parliament; only a general +proposition for a bill by way of address to the lord lieutenant and +council came from parliament; nor was it till after the revolution +that heads of bills were presented; these last in fact resembled acts +of parliament or bills, with only the small difference of 'We pray +that it may be enacted,' instead of 'Be it enacted.'"[580] They +assumed about the same time the examination of accounts, and of the +expenditure of public money.[581] + +Meanwhile, as they gradually emancipated themselves from the +ascendancy of the Crown, they found a more formidable power to contend +with in the English parliament. It was acknowledged, by all at least +of the protestant name, that the Crown of Ireland was essentially +dependent on that of England, and subject to any changes that might +affect the succession of the latter. But the question as to the +subordination of her legislature was of a different kind. The +precedents and authorities of early ages seem not decisive; so far as +they extend, they rather countenance the opinion that English statutes +were of themselves valid in Ireland. But from the time of Henry VI. or +Edward IV. it was certainly established that they had no operation, +unless enacted by the Irish parliament. This however would not +legally prove that they might not be binding, if express words to that +effect were employed; and such was the doctrine of Lord Coke and of +other English lawyers. This came into discussion about the eventful +period of 1641. The Irish in general protested against the legislative +authority of England, as a novel theory which could not be +maintained;[582] and two treatises on the subject, one ascribed to +Lord Chancellor Bolton, or more probably to an eminent lawyer, Patrick +Darcy, for the independence of Ireland, another, in answer to it, by +Serjeant Mayart, may be read in the _Hibernica_ of Harris.[583] Very +few instances occurred before the revolution, wherein the English +parliament thought fit to include Ireland in its enactments, and none +perhaps wherein they were carried into effect. But after the +revolution several laws of great importance were passed in England to +bind the other kingdom, and acquiesced in without express opposition +by its parliament. Molyneux, however, in his celebrated _Case of +Ireland's being bound by Acts of Parliament in England stated_, +published in 1697, set up the claim of his country for absolute +legislative independency. The House of Commons at Westminster came to +resolutions against this book; and, with their high notions of +parliamentary sovereignty, were not likely to desist from a pretension +which, like the very similar claim to impose taxes in America, sprung +in fact from the semi-republican scheme of constitutional law +established by means of the revolution.[584] It is evident that while +the sovereignty and enacting power was supposed to reside wholly in +the king, and only the power of consent to the two houses of +parliament, it was much less natural to suppose a control of the +English legislature over other dominions of the Crown, having their +own representation for similar purposes, than after they had become, +in effect and in general sentiment, though not quite in the +statute-book, co-ordinate partakers of the supreme authority. The +Irish parliament, however, advancing as it were in a parallel line, +had naturally imbibed the same sense of its own supremacy, and made +at length an effort to assert it. A judgment from the court of +exchequer in 1719 having been reversed by the House of Lords, an +appeal was brought before the Lords in England, who affirmed the +judgment of the exchequer. The Irish Lords resolved that no appeal lay +from the court of exchequer in Ireland to the king in parliament in +Great Britain; and the barons of that court having acted in obedience +to the order of the English Lords, were taken into the custody of the +black rod. That house next addressed the king, setting forth their +reasons against admitting the appellant jurisdiction. But the Lords in +England, after requesting the king to confer some favour on the barons +of the exchequer who had been censured and illegally imprisoned for +doing their duty, ordered a bill to be brought in for better securing +the dependency of Ireland upon the Crown of Great Britain, which +declares "that the king's majesty, by and with the advice and consent +of the Lords spiritual and temporal and Commons of Great Britain, in +parliament assembled, had, hath, and of right ought to have, full +power and authority to make laws and statutes of sufficient force and +validity to bind the people and the kingdom of Ireland; and that the +House of Lords of Ireland have not, nor of right ought to have, any +jurisdiction to judge of, reverse, or affirm any judgment, sentence, +or decree given or made in any court within the said kingdom; and that +all proceedings before the said House of Lords upon any such judgment, +sentence, or decree, are, and are hereby declared to be, utterly null +and void, to all intents and purposes whatsoever."[585] + +The English government found no better method of counteracting this +rising spirit of independence than by bestowing the chief posts in the +state and church on strangers, in order to keep up what was called the +English interest.[586] This wretched policy united the natives of +Ireland in jealousy and discontent, which the latter years of Swift +were devoted to inflame. It was impossible that the kingdom should +become, as it did under George II., more flourishing through its great +natural fertility, its extensive manufacture of linen, and its +facilities for commerce, though much restricted (the domestic alarm +from the papists also being allayed by their utter prostration), +without writhing under the indignity of its subordination; or that a +House of Commons, constructed so much on the model of the English, +could hear patiently of liberties and privileges it did not enjoy. +These aspirations for equality first, perhaps, broke out into audible +complaints in the year 1753. The country was in so thriving a state +that there was a surplus revenue after payment of all charges. The +House of Commons determined to apply this to the liquidation of a +debt. The government, though not unwilling to admit of such an +application, maintained that the whole revenue belonged to the king, +and could not be disposed of without his previous consent. In England, +where the grants of parliament are appropriated according to +estimates, such a question could hardly arise; nor would there, I +presume, be the slightest doubt as to the control of the House of +Commons over a surplus income. But in Ireland, the practice of +appropriation seems never to have prevailed, at least so +strictly;[587] and the constitutional right might perhaps not +unreasonably be disputed. After long and violent discussions, wherein +the speaker of the Commons and other eminent men bore a leading part +on the popular side, the Crown was so far victorious as to procure +some motions to be carried, which seemed to imply its authority; but +the house took care, by more special applications of the revenue, to +prevent the recurrence of an undisposed surplus.[588] From this era +the great parliamentary history of Ireland begins, and is terminated +after half a century by the union: a period fruitful of splendid +eloquence, and of ardent, though not always uncompromising, +patriotism; but which, of course, is beyond the limits prescribed to +these pages. + +FOOTNOTES: + +[463] Sir James Ware's _Antiquities of Ireland_; Leland's _Hist. of +Ireland_ (Introduction); Ledwich's _Dissertations_. + +[464] _Id._ Auct.: also Davis's _Reports_, 29, and his "Discovery of +the true Causes why Ireland was never entirely subdued till his +Majesty's happy Reign," 169. Sir John Davis, author of the +philosophical poem, [Greek: Gnothi Seathton] was chief-justice of Ireland under +James I. The tract just quoted is well known as a concise and luminous +exposition of the history of that country from the English invasion. + +[465] Ware; Leland; Ledwich; Davis's "Discovery," _ibid._; _Reports_, +49. It is remarkable that Davis seems to have been aware of an analogy +between the custom of Ireland and Wales, and yet that he only quotes +the statute of Rutland (12 Edw. I.), which by itself does not prove +it. It is, however, proved, if I understand the passage, by one of the +_Leges Walliae_ published by Wotton, p. 139. A gavel or partition was +made on the death of every member of a family for three generations, +after which none could be enforced. But these parceners were to be all +in the same degree; so that nephews could not compel their uncle to a +partition, but must wait till his death, when they were to be put on +an equality with their cousins; and this, I suppose, is meant by the +expression in the statute of Rutland, "quod haereditates remaneant +partibiles inter _consimiles haeredes_." + +[466] Leland seems to favour the authenticity of the supposed Brehon +laws published by Vallancey. Introduction, 29. The style is said to be +very distinguishable from the Irish of the twelfth or thirteenth +century, and the laws themselves to have no allusion to the settlement +of foreigners in Ireland, or to coined money; whence some ascribe them +to the eighth century. On the other hand, Ledwich proves that some +parts must be later than the tenth century. _Dissertations_, i. 270. +And others hold them to be not older than the thirteenth. Campbell's +_Historical Sketch of Ireland_, 41. It is also maintained that they +are very unfaithfully translated. But, when we find the Anglo-Saxon +and Norman usages, relief, aid, wardship, trial by jury (and that +unanimous), and a sort of correspondence in the ranks of society with +those of England (which all we read elsewhere of the ancient Irish +seems to contradict), it is impossible to resist the suspicion that +they are either extremely interpolated, or were compiled in a late +age, and among some of the septs who had most intercourse with the +English. We know that the degenerate colonists, such as the Earls of +Desmond, adopted the Brehon law in their territories; but this would +probably be with some admixture of that to which they had been used. + +[467] "The first pile of lime and stone that ever was in Ireland was +the castle of Tuam, built in 1161 by Roderic O'Connor, the monarch." +Introduction to Cox's _History of Ireland_. I do not find that any +later writer controverts this, so far as the aboriginal Irish are +concerned; but doubtless the Norwegian Ostmen had stone churches, and +there seems little doubt that some at least of the famous round towers +so common in Ireland were erected by them. See Ledwich's +_Dissertations_, vii. 143; and the book called Grose's _Antiquities of +Ireland_, also written by Ledwich. Piles of stone without mortar are +excluded by Cox's expression. In fact, the Irish had very few stone +houses, or even regular villages and towns, before the time of James +I. Davis, 170. + +[468] Ledwich, i. 395. + +[469] _Antiquities of Ireland_, ii. 76. + +[470] Ledwich, i. 260. + +[471] Ware, ii. 74; Davis's _Discovery_, 174; Spenser's _State of +Ireland_, 390. + +[472] Davis, 135. + +[473] Leland, 80 _et post_; Davis, 100. + +[474] 4 Inst. 349; Leland, 203; Harris's _Hibernica_, ii. 14. + +[475] These counties are Dublin, Kildare, Meath (including Westmeath), +Louth, Carlow, Wexford, Kilkenny, Waterford, Cork, Tipperary, Kerry, +and Limerick. In the reign of Edward I. we find sheriffs also of +Connaught and Roscommon. Leland, i. 19. Thus, except the northern +province and some of the central districts, all Ireland was +shire-ground, and subject to the Crown in the thirteenth century, +however it might fall away in the two next. Those who write confusedly +about this subject, pretend that the authority of the king at no time +extended beyond the pale; whereas that name was not known, I believe, +till the fifteenth century. Under the great Earl of Pembroke, who died +in 1219, the whole island was perhaps nearly as much reduced under +obedience as in the reign of Elizabeth. Leland, 205. + +[476] Leland, 170. + +[477] Davis, 140. William Marischal, Earl of Pembroke, who married the +daughter of Earl Strongbow, left five sons and five daughters; the +first all died without issue. + +[478] Davis, 147; Leland, 291. + +[479] _Id._ 194, 209. + +[480] Leland, 225. + +[481] Davis, 100, 109. He quotes the following record from an assize +at Waterford, in the 4th of Edward II. (1311), which may be extracted, +as briefly illustrating the state of law in Ireland better than any +general positions. "Quod Robertus le Wayleys rectatus de morte +Johannis filii Ivor MacGillemory, felonice per ipsum interfecti, etc. +Venit et bene cognovit quod praedictum Johannem interfecit; dicit tamen +quod per ejus interfectionem feloniam committere non potuit, quia +dicit, quod praedictus Johannes fuit purus Hibernicus, et non de libero +sanguine, etc. Et cum dominus dicti Johannis, cujus Hibernicus idem +Johannes fuit, die quo interfectus fuit, solutionem pro ipso Johanne +Hibernico suo sic interfecto petere voluerit, ipse Robertus paratus +erit ad respondendum de solutione praedicta prout justitia suadebit. Et +super hoc venit quidam Johannes le Poer, et dicit pro domino rege, +quod praedictus Johannes filius Ivor Mac-Gillemory, et antecessores sui +de cognomine praedicto a tempore quo dominus Henricus filius +imperatricis, quondam dominus Hiberniae, tritavus domini regis nunc, +fuit in Hibernia, legem Anglicanam in Hibernia usque ad hanc diem +habere, et secundum ipsam legem judicari et deduci debent." We have +here both the general rule, that the death of an Irishman was only +punishable by a composition to his lord, and the exception in behalf +of those natives who had conformed to the English law. + +[482] Davis, 104; Leland, 82. It was necessary to plead in bar of an +action, that the plaintiff was Hibernicus, et non de quinque +sanguinibus. + +[483] Davis, 106. "If I should collect out of the records all the +charters of this kind, I should make a volume thereof." They began as +early as the reign of Henry III. Leland, 225. + +[484] Leland, 243. + +[485] _Id._ 289. + +[486] "There were two other customs proper and peculiar to the +Irishry, which, being the cause of many strong combinations and +factions, do tend to the utter ruin of a commonwealth. The one was +_fostering_, the other _gossipred_; both which have ever been of +greater estimation among this people than with any other nation in the +Christian world. For fostering I did never hear or read that it was in +that use or reputation in any other country, barbarous or civil, as it +hath been, and yet is, in Ireland, where they put away all their +children to fosterers; the potent and rich men selling, the meaner +sort, buying, the alterage and nursing of their children; and the +reason is, because in the opinion of this people, _fostering_ hath +always been a stronger alliance than blood; and the foster-children do +love and are beloved of their foster-fathers and their sept, more than +of their own natural parents and kindred, and do participate of their +means more frankly, and do adhere to them in all fortunes, with more +affection and constancy. The like may be said of _gossipred_ or +compaternity, which though by the canon law it be a spiritual +affinity, and a juror that was gossip to either of the parties might +in former times have been challenged, as not indifferent, by our law, +yet there was no nation under the sun that ever made so religious an +account of it as the Irish," Davis, 179. + +[487] "For that now there is no diversity in array between the English +marchers and the Irish enemies, and so by colour of the English +marchers, the Irish enemies do come from day to day into the English +counties as English marchers, and do rob and kill by the highways, and +destroy the common people by lodging upon them in the nights, and also +do kill the husbands in the nights and do take their goods to the +Irish men; wherefore it is ordained and agreed, that no manner man +that will be taken for an Englishman shall have no beard above his +mouth; that is to say, that he have no hairs upon his upper lip, so +that the said lip be once at least shaven every fortnight, or of equal +growth with the nether lip. And if any man be found among the English +contrary hereunto, that then it shall be lawful to every man to take +them and their goods as Irish enemies, and to ransom them as Irish +enemies." Irish Statutes, 25 H. 6, c. 4. + +[488] Davis, 152, 182; Leland, i. 256, etc.; Ware, ii. 58. + +[489] Leland, 253. + +[490] Cox's _Hist. of Ireland_, 117, 120. + +[491] _Id._ 125, 129; Leland, 313. + +[492] Irish Statutes. + +[493] Davis, 174, 189; Leland, 281. Maurice Fitz-Thomas, Earl of +Desmond, was the first of the English, according to Ware, ii. 76, who +imposed the exaction of coyne and livery. + +[494] Irish Statutes; Davis, 202; Cox; Leland. + +[495] Leland, i. 278, 296, 324; Davis, 152, 197. + +[496] Leland, 342. The native chieftains who came to Dublin are said +to have been seventy-five in number; but the insolence of the +courtiers, who ridiculed an unusual dress and appearance, disgusted +them. + +[497] Davis, 193. + +[498] Leland, ii. 822 _et post_; Davis, 199, 229, 236; Holingshed's +_Chronicles of Ireland_, p. 4. Finglas, a baron of the exchequer in +the reign of Henry VIII., in his _Breviate of Ireland_, from which +Davis has taken great part of his materials, says expressly, that, by +the disobedience of the Geraldines and Butlers, and their Irish +connections, "the whole land is now of Irish rule, except the little +English pale, within the counties of Dublin and Meath, and Uriel +[Louth], which pass not thirty or forty miles in compass." The English +were also expelled from Munster, except the walled towns. The king had +no profit out of Ulster, but the manor of Carlingford, nor any in +Connaught. This treatise, written about 1530, is printed in Harris's +_Hibernica_. The proofs that, in this age, the English law and +government were confined to the four shires, are abundant. It is even +mentioned in a statute, 13 H. 8, c. 2. + +[499] Irish Statutes; Davis, 230; Leland, ii. 102. + +[500] Leland. + +[501] Irish Statutes, 33 H. 8, c. 1. + +[502] _Ibid._ 28 H. 8, c. 15, 28. The latter act prohibits +intermarriage or fostering with the Irish; which had indeed been +previously restrained by other statutes. In one passed five years +afterwards, it is recited that "the king's English subjects, by reason +that they are inhabited in so little compass or circuit, and +restrained by statute to marry with the Irish nation, and therefore of +necessity must marry themselves together, so that in effect they all +for the most part must be allied together; and therefore it is +enacted, that consanguinity or affinity beyond the fourth degree shall +be no cause of challenge on a jury." 33 H. 8, c. 4. These laws were +for many years of little avail, so far at least as they were meant to +extend beyond the pale. Spenser's _State of Ireland_, p. 384 _et +post_. + +[503] Leland, ii. 178, 184. + +[504] Leland, ii. 189, 211; 3 & 4 P. and M. c. 1 and 2. Meath had been +divided into two shires, by separating the western part. 34 H. 8, c. +1. "Forasmuch as the shire of Methe is great and large in circuit, and +the west part thereof laid about or beset with divers of the king's +rebels." Baron Finglas says, "Half Meath has not obeyed the king's +laws these one hundred years or more." _Breviate of Ireland_, apud +Harris, p. 85. + +[505] Leland, ii. 158. + +[506] Leland, 224; Irish Statutes, 2 Eliz. + +[507] Leland gives several instances of breach of faith in the +government. A little tract, called a "Brief Declaration of the +Government of Ireland," written by Captain Lee in 1594, and published +in _Desiderata Curiosa Hibernica_, vol. i., censures the two last +deputies (Grey and Fitzwilliams) for their ill usage of the Irish, and +unfolds the despotic character of the English government. "The cause +they (the lords of the north) have to stand upon those terms, and to +seek for better assurance, is the harsh practices used against others, +by those who have been placed in authority to protect men for your +majesty's service, which they have greatly abused in this sort. They +have drawn unto them by protection three or four hundred of the +country people, under colour to do your majesty service, and brought +them to a place of meeting, where your garrison soldiers were +appointed to be, who have there most dishonourably put them all to the +sword; and this hath been by the consent and practice of the lord +deputy for the time being. If this be a good course to draw those +savage people to the state to do your majesty service, and not rather +to enforce them to stand on their guard, I leave to your majesty."--P. +90. He goes on to enumerate more cases of hardship and tyranny; many +being arraigned and convicted of treason on slight evidence; many +assaulted and killed by the sheriffs on commissions of rebellion; +others imprisoned and kept in irons; among others, a youth, the heir +of a great estate. He certainly praises Tyrone more than, from +subsequent events, we should think just, which may be thought to throw +some suspicion on his own loyalty; yet he seems to have been a +protestant, and in 1594 the views of Tyrone were ambiguous, so that +Captain Lee may have been deceived. + +[508] _Sidney Papers_, i. 20. + +[509] _Id._ 24. + +[510] _Sidney Papers_, i. 29. Spenser descants on the lawless violence +of the superior Irish; and imputes, I believe with much justice, a +great part of their crimes to his own brethren, if they might claim so +proud a title, the bards: "whomsoever they find to be most licentious +of life, most bold and lawless in his doings, most dangerous and +desperate in all parts of disobedience and rebellious disposition, him +they set up and glorify in their rhymes, him they praise to the +people, and to young men make an example to follow."--P. 394. + +[511] Holingshed, 460. + +[512] Leland, 287; Spenser's _Account of Ireland_, p. 430 (vol. viii. +of Todd's edition, 1805). Grey is the Arthegal of the _Faery Queen_, +the representative of the virtue of justice in that allegory, attended +by Talus with his iron flail, which indeed was unsparingly employed to +crush rebellion. Grey's severity was signalised in putting to death +seven hundred Spaniards who had surrendered at discretion in the fort +of Smerwick. Though this might be justified by the strict laws of war +(Philip not being a declared enemy) it was one of those extremities +which justly revolt the common feelings of mankind. The queen is said +to have been much displeased at it. Leland, 283. Spenser undertakes +the defence of his patron Grey. _State of Ireland_, p. 434. + +[513] Leland, 247, 293. An act had passed (II Eliz. c. 9) for dividing +the whole island into shire-ground, appointing sheriffs, justices of +the peace, etc.; which, however, was not completed. + +[514] Leland, 305. Their conduct provoked an insurrection both in +Connaught and Ulster. Spenser, who shows always a bias towards the +most rigorous policy, does injustice to Perrott." He did tread down +and disgrace all the English, and set up and countenance the Irish all +that he could."--P. 437. This has in all ages been the language, when +they have been placed on an equality, or anything approaching to an +equality, with their fellow subjects. + +[515] Leland, 248. + +[516] Holingshed's _Chronicles of Ireland_, 342. This part is written +by Hooker himself. Leland, 240; Irish Statutes, 11 Eliz. + +[517] _Sidney Papers_, i. 153. + +[518] _Id._ 179. + +[519] _Sidney Papers_, 84, 117, etc., to 236; Holingshed, 389; Leland, +261. Sidney was much disappointed at the queen's want of firmness; but +it is plain by the correspondence that Walsingham also thought he had +gone too far. P. 192. The sum required seems to have been reasonable, +about L2000 a year from the five shires of the pale; and, if they had +not been stubborn, he thought all Munster also, except the Desmond +territories, would have submitted to the payment. P. 183. "I have +great cause," he writes, "to mistrust the fidelity of the greatest +number of the people of this country's birth of all degrees; they be +papists, as I may well term them, body and soul. For not only in +matter of religion they be Romish, but for government they will +change, to be under a prince of their own superstition. Since your +highness' reign the papists never showed such boldness as now they +do."--P. 184. This, however, hardly tallies with what he says +afterwards (p. 208): "I do believe, for far the greatest number of the +inhabitants of the English pale, her highness hath as true and +faithful subjects as any she hath subject to the Crown;" unless the +former passage refer chiefly to those without the pale, who in fact +were exclusively concerned in the rebellions of this reign. + +[520] "The church is now so spoiled," says Sir Henry Sidney in 1576, +"as well by the ruin of the temples, as the dissipation and embezzling +of the patrimony, and most of all for want of sufficient ministers, as +so deformed and overthrown a church there is not, I am sure, in any +region where Christ is professed." _Sidney Papers_, i. 109. In the +diocese of Meath, being the best inhabited country of all the realm, +out of 224 parish churches, 105 were impropriate having only curates, +of whom but eighteen could speak English, the rest being Irish rogues, +who used to be papists; fifty-two other churches had vicars, and +fifty-two more were in better state than the rest, yet far from well. +_Id._ 112. Spenser gives a bad character of the protestant clergy. P. +412. + +An act was passed (12 Eliz. c. 1) for erecting free schools in every +diocese, under English masters; the ordinary paying one-third of the +salary, and the clergy the rest. This, however, must have been nearly +impracticable. Another act (13 Eliz. c. 4) enables the Archbishop of +Armagh to grant leases of his lands out of the pale for a hundred +years without assent of the dean and chapter, to persons of English +birth, "or of the English and civil nation, born in this realm of +Ireland," at the rent of 4_d._ an acre. It recites the chapter to be +"except a very few of them, both by nation, education, and custom, +Irish, Irishly affectioned, and small hopes of their conformities or +assent into any such devices as would tend to the placing of any such +number of civil people there, to the disadvantage or bridling of the +Irish." In these northern parts, the English and protestant interests +had so little influence that the pope conferred three bishoprics, +Derry, Clogher, and Raphoe, throughout the reign of Elizabeth. Davis, +254; Leland, ii. 248. What is more remarkable is, that two of these +prelates were summoned to parliament in 1585 (_Id._ 295); the first in +which some Irish were returned among the Commons. + +The reputation of the protestant church continued to be little better +in the reign of Charles I., though its revenues were much improved. +Strafford gives the clergy a very bad character in writing to Laud. +Vol. i. 187. And Burnet's _Life of Bedell_, transcribed chiefly from a +contemporary memoir, gives a detailed account of that bishop's diocese +(Kilmore), which will take off any surprise that might be felt at the +slow progress of the reformation. He had about fifteen protestant +clergy, but all English, unable to speak the tongue of the people, or +to perform any divine offices, or converse with them, "which is no +small cause of the continuance of the people in popery still."--P. 47. +The bishop observed, says his biographer, "with much regret, that the +English had all along neglected the Irish as a nation not only +conquered but undisciplinable; and that the clergy had scarce +considered them as a part of their charge; but had left them wholly +into the hands of their own priests, without taking any other care of +them but the making them pay their tithes. And indeed their priests +were a strange sort of people, that knew generally nothing but the +reading their offices, which were not so much as understood by many of +them; and they taught the people nothing but the saying their paters +and aves in Latin."--P. 114. Bedell took the pains to learn himself +the Irish language; and though he could not speak it, composed the +first grammar ever made of it; had the common prayer read every Sunday +in Irish, circulated catechisms, engaged the clergy to set up schools, +and even undertook a translation of the Old Testament, which he would +have published but for the opposition of Laud and Strafford. P. 121. + +[521] Leland, 413. + +[522] Leland, 414, etc. In a letter from six catholic lords of the +pale to the king in 1613, published in _Desiderata Curiosa Hibernica_, +i. 158, they complain of the oath of supremacy, which, they say, had +not been much imposed under the queen, but was now for the first time +enforced in the remote parts of the country; so that the most +sufficient gentry were excluded from magistracy, and meaner persons, +if conformable, put instead. It is said on the other side, that the +laws against recusants were very little enforced, from the difficulty +of getting juries to present them. _Id._ 359. Carte's _Ormond_, 33. +But this at least shows that there was some disposition to molest the +catholics on the part of the government; and it is admitted that they +were excluded from offices, and even from practising at the bar, on +account of the oath of supremacy. _Id._ 320; and compare the letter of +six catholic lords with the answer of lord deputy and council in the +same volume. + +[523] Davis's _Reports_, ubi supra; "Discovery of Causes," etc., 260; +Carte's _Life of Ormond_, i. 14; Leland, 418. It had long been an +object with the English government to extinguish the Irish tenures and +laws. Some steps towards it were taken under Henry VIII.; but at that +time there was too great a repugnance among the chieftains. In +Elizabeth's instructions to the Earl of Sussex on taking the +government in 1560, it is recommended that the Irish should surrender +their estates, and receive grants in tail male, but no greater estate. +_Desiderata Curiosa Hibernica_, i. 1. This would have left a reversion +in the Crown, which could not have been cut off, I believe, by +suffering a recovery. But as those who held by Irish tenure had +probably no right to alienate their lands, they had little cause to +complain. An act in 1569 (12 Eliz. c. 4), reciting the greater part of +the Irish to have petitioned for leave to surrender their lands, +authorises the deputy by advice of the privy council to grant letters +patent to the Irish and degenerate English, yielding certain +reservations to the queen. Sidney mentions, in several of his letters, +that the Irish were ready to surrender their lands. Vol. i. 94, 105, +165. + +The act 11 Jac. 1, c. 5, repeals divers statutes that treat the Irish +as enemies, some of which have been mentioned above. It takes all the +king's subjects under his protection to live by the same law. Some +vestiges of the old distinctions remained in the statute-book, and +were eradicated in Strafford's parliament. 10 & 11 Car. 1, c. 6. + +[524] Leland, 254. + +[525] See a note in Leland, ii. 302. The truth seems to be, that in +this, as in other Irish forfeitures, a large part was restored to the +tenants of the attainted parties. + +[526] Leland, ii. 301. + +[527] Carte's _Life of Ormond_, i. 15; Leland, 429; Farmer's +"Chronicle of Sir Arthur Chichester's government," in _Desiderata +Curiosa Hibernica_, i. 32; an important and interesting narrative; +also vol. ii. of the same collection, 37; Bacon's Works, i. 657. + +[528] Leland, 437, 466; Carte's _Ormond_, 22; _Desiderata Curiosa +Hibernica_, 238, 243, 378 _et alibi_; ii. 37 _et post_. In another +treatise published in this collection, entitled "A Discourse on the +State of Ireland," 1614, an approaching rebellion is remarkably +predicted. "The next rebellion, whensoever it shall happen, doth +threaten more danger to the state than any that hath preceded; and my +reasons are these: 1. They have the same bodies they ever had; and +therein they have and had advantage over us. 2. From their infancies +they have been and are exercised in the use of arms. 3. The realm, by +reason of long peace, was never so full of youth as at this present. +4. That they are better soldiers than heretofore, their continual +employments in the wars abroad assure us; and they do conceive that +their men are better than ours. 5. That they are more politic, and +able to manage rebellion with more judgment and dexterity than their +elders, their experience and education are sufficient. 6. They will +give the first blow; which is very advantageous to them that will give +it. 7. The quarrel for the which they rebel will be under the veil of +religion and liberty, than which nothing is esteemed so precious in +the hearts of men. 8. And lastly, their union is such, as not only the +old English dispersed abroad in all parts of the realm, but the +inhabitants of the pale cities and towns, are as apt to take arms +against us, which no precedent time hath ever seen, as the ancient +Irish."--Vol. i. 432. "I think that little doubt is to be made, but +that the modern English and Scotch would in an instant be massacred in +their houses."--P. 438. This rebellion the author expected to be +brought about by a league with Spain and with aid from France. + +[529] The famous parliament of Kilkenny, in 1367, is said to have been +very numerously attended. Leland, i. 319. We find indeed an act (10 H. +7, c. 23) annulling what was done in a preceding parliament, for this +reason, among others, that the writs had not been sent to all the +shires, but to four only. Yet it appears that the writs would not have +been obeyed in that age. + +[530] Speech of Sir John Davis (1612), on the parliamentary +constitution of Ireland, in Appendix to Leland, vol. ii. p. 490, with +the latter's observations on it. Carte's _Ormond_, i. 18; Lord +Mountmorres's _Hist. of Irish Parliament_. + +[531] In the letter of the lords of the pale to King James above +mentioned, they express their apprehension that the erecting so many +insignificant places to the rank of boroughs was with the view of +bringing on fresh penal laws in religion; "and so the general scope +and institution of parliament frustrated; they being ordained for the +assurance of the subjects not to be pressed with any new edicts or +laws, but such as should pass with their general consents and +approbations."--P. 158. The king's mode of replying to this +constitutional language was characteristic. "What is it to you whether +I make many or few boroughs? My council may consider the fitness, if I +require it. But what if I had created 40 noblemen and 400 boroughs? +The more the merrier, the fewer the better cheer." _Desid. Cur. Hib._ +308. + +[532] Mountmorres, i. 166. The whole number of peers in 1634 was 122, +and those present in parliament that year were 66. They had the +privilege not only of voting, but even protesting by proxy; and those +who sent none, were sometimes fined. _Id._ vol. i. 316. + +[533] Carte's _Ormond_, i. 48; Leland, ii. 475 _et post_. + +[534] Leland, iii. 4 _et post_. A vehement protestation of the bishops +about this time, with Usher at their head, against any connivance at +popery, is a disgrace to their memory. It is to be met with in many +books. Strafford, however, was far from any real liberality of +sentiment. His abstinence from religious persecution was intended to +be temporary, as the motives whereon it was founded. "It will be ever +far forth of my heart to conceive that a conformity in religion is not +above all other things principally to be intended. For undoubtedly +till we be brought all under one form of divine service, the Crown is +never safe on this side, etc. It were too much at once to distemper +them by bringing plantations upon them, and disturbing them in the +exercise of their religion, so long as it be without scandal; and so +indeed very inconsiderate, as I conceive, to move in this latter, till +that former be fully settled, and by that means the protestant party +become by much the stronger, which in truth I do not yet conceive it +to be." _Straff. Letters_, ii. 39. He says, however, and I believe +truly, that no man had been touched for conscience' sake since he was +deputy. _Id._ 112. Every parish, as we find by Bedell's _Life_, had +its priest and mass-house; in some places mass was said in the +churches; the Romish bishops exercised their jurisdiction, which was +fully obeyed; but "the priests were grossly ignorant and openly +scandalous, both for drunkenness and all sort of lewdness."--P. 41, +76. More than ten to one in his diocese, the county of Cavan, were +recusants. + +[535] Some at the council-board having intimated a doubt of their +authority to bind the kingdom, "I was then put to my last refuge, +which was plainly to declare that there was no necessity which induced +me to take them to counsel in this business, for rather than fail in +so necessary a duty to my master, I would undertake upon the peril of +my head to make the king's army able to subsist, and to provide for +itself amongst them, without their help." _Strafford Letters_, i. 98. + +[536] _Id._ i. 183; Carte, 61. + +[537] The protestants, he wrote word, had a majority of eight in the +Commons. He told them, "it was very indifferent to him what resolution +the house might take; that there were two ends he had in view, and one +he would infallibly attain--either a submission of the people to his +majesty's just demands, or a just occasion of breach, and either would +content the king; the first was undeniably and evidently best for +them."--_Id._ 277, 278. In his speech to the two houses, he said, "His +majesty expects not to find you muttering, or to name it more truly, +mutinying in corners. I am commanded to carry a very watchful eye over +these private and secret conventicles, to punish the transgression +with a heavy and severe hand; therefore it behoves you to look to +it."--_Id._ 289. "Finally," he concludes, "I wish you had a right +judgment in all things; yet let me not prove a Cassandra amongst you, +to speak truth and not be believed. However, speak truth I will, were +I to become your enemy for it. Remember therefore that I tell you, you +may easily make or mar this parliament. If you proceed with respect, +without laying clogs and conditions upon the king, as wise men and +good subjects ought to do, you shall infallibly set up this parliament +eminent to posterity, as the very basis and foundation of the greatest +happiness and prosperity that ever befell this nation. But, if you +meet a great king with narrow circumscribed hearts, if you will needs +be wise and cautious above the moon [sic], remember again that I tell +you, you shall never be able to cast your mists before the eyes of a +discerning king; you shall be found out; your sons shall wish they had +been the children of more believing parents; and in a time when you +look not for it, when it will be too late for you to help, the sad +repentance of an unadvised heart shall be yours, lasting honour shall +be my master's." + +These subsidies were reckoned at near L41,000 each, and were thus +apportioned: Leinster paid L13,000 (of which L1000 from the city of +Dublin), Munster L11,000, Ulster L10,000, Connaught L6,800. +Mountmorres, ii. 16. + +[538] Irish Statutes, 10 Car. 1, c. 1, 2, 3, etc.; _Strafford +Letters_, i. 279, 312. The king expressly approved the denial of the +graces, though promised formerly by himself. _Id._ 345; Leland, iii. +20. + +"I can now say," Strafford observes (_Id._ 344), "the king is as +absolute here as any prince in the whole world can be; and may still +be, if it be not spoiled on that side." + +[539] _Strafford Letters_, i. 353, 370, 402, 442, 451, 454, 473; ii. +113, 139, 366; Leland, iii. 30, 39; Carte, 82. + +[540] It is, however, true that he discouraged the woollen +manufacture, in order to keep the kingdom more dependent, and that +this was part of his motive in promoting the other. Vol. ii. 19. + +[541] Leland, iii. 51. Strafford himself (ii. 397) speaks highly of +their disposition. + +[542] Carte's _Ormond_, 100, 140; Leland, iii. 54 _et post_; +Mountmorres, ii. 29. A remonstrance of the Commons to Lord-Deputy +Wandesford against various grievances was presented 7th November 1640, +before Lord Strafford had been impeached. _Id._ 39. As to confirming +the graces, the delay, whether it proceeded from the king or his Irish +representatives, seems to have caused some suspicion. Lord Clanricarde +mentions the ill consequences that might result, in a letter to Lord +Bristol. Carte's _Ormond_, iii. 40. + +[543] Sir Henry Vane communicated to the lords justices, by the king's +command, March 16, 1640-1, that advice had been received and confirmed +by the ministers in Spain and elsewhere, which "deserved to be +seriously considered, and an especial care and watchfulness to be had +therein: that of late there have passed from Spain (and the like may +well have been from other parts) an unspeakable number of Irish +churchmen for England and Ireland, and some good old soldiers, under +pretext of asking leave to raise men for the King of Spain; whereas, +it is observed among the Irish friars there, a whisper was, as if they +expected a rebellion in Ireland, and particularly in Connaught." +Carte's _Ormond_, iii. 30. This letter, which Carte seems to have +taken from a printed book, is authenticated in _Clarendon State +Papers_, ii. 143. I have mentioned in another part of this work (Chap. +VIII.) the provocations which might have induced the cabinet of Madrid +to foment disturbances in Charles's dominions. The lords justices are +taxed by Carte with supineness in paying no attention to this letter +(vol. i. 166); but how he knew that they paid none seems hard to say. + +Another imputation has been thrown on the Irish government and on the +parliament, for objecting to permit levies to be made for the Spanish +service out of the army raised by Strafford, and disbanded in the +spring of 1641, which the king had himself proposed. Carte, i. 133; +and Leland, 82, who follows the former implicitly, as he always does. +The events indeed proved that it would have been far safer to let +those soldiers, chiefly catholics, enlist under a foreign banner; but +considering the long connection of Spain with that party, and the +apprehension always entertained that the disaffected might acquire +military experience in her service, the objection does not seem so +very unreasonable. + +[544] The fullest writer on the Irish rebellion is Carte, in his _Life +of Ormond_, who had the use of a vast collection of documents +belonging to that noble family; a selection from which forms this +third volume. But he is extremely partial against all who leaned to +the parliamentary or puritan side, and especially the lords justices, +Parsons and Borlase; which renders him, to say the least, a very +favourable witness for the catholics. Leland, with much candour +towards the latter, but a good deal of the same prejudice against the +presbyterians, is little more than the echo of Carte. A more vigorous, +though less elegant historian, is Warner, whose impartiality is at +least equal to Leland's, and who may perhaps, upon the whole, be +reckoned the best modern authority. Sir John Temple's _History of +Irish Rebellion_, and Lord Clanricarde's _Letters_, with a few more of +less importance, are valuable contemporary testimonies. + +The catholics themselves might better leave their cause to Carte and +Leland than excite prejudices instead of allaying them by such a +tissue of misrepresentation and disingenuousness as Curry's +_Historical Account of the Civil Wars in Ireland_. + +[545] Sir John Temple reckons the number of protestants murdered, or +destroyed in some manner, from the breaking out of the rebellion in +October 1641, to the cessation in September 1643, at three hundred +thousand, an evident and enormous exaggeration; so that the first +edition being incorrectly printed, and with numerals, we might almost +suspect a cipher to have been added by mistake (p. 15, edit. Maseres). +Clarendon says forty or fifty thousand were murdered in the first +insurrection. Sir William Petty, in his _Political Anatomy of +Ireland_, from calculations too vague to deserve confidence, puts the +number massacred at thirty-seven thousand. Warner has scrutinised the +examinations of witnesses, taken before a commission appointed in +1643, and now deposited in the library of Trinity College, Dublin; +and, finding many of the depositions unsworn, and others founded on +hearsay, has thrown more doubt than any earlier writer on the extent +of the massacre. Upon the whole, he thinks twelve thousand lives of +protestants the utmost that can be allowed for the direct or indirect +effects of the rebellion, during the two first years, except losses in +war (_History of Irish Rebellion_, p. 397), and of these only +one-third by murder. It is to be remarked, however, that no distinct +accounts could be preserved in formal depositions of so promiscuous a +slaughter, and that the very exaggerations show its tremendous nature. +The Ulster colony, a numerous and brave people, were evidently unable +to make head for a considerable time against the rebels; which could +hardly have been, if they had only lost a few thousands. It is idle to +throw an air of ridicule (as is sometimes attempted) on the +depositions, because they are mingled with some fabulous +circumstances, such as the appearance of the ghosts of the murdered on +the bridge at Cavan; which by the way, is only told, in the +depositions subjoined to Temple, as the report of the place, and was +no cold-blooded fabrication, but the work of a fancy bewildered by +real horrors. + +Carte, who dwells at length on every circumstance unfavourable to the +opposite party, despatches the Ulster massacre in a single short +paragraph, and coolly remarks, that there were not many murders, +"_considering the nature of such an affair_," in the first week of the +insurrection. _Life of Ormond_, i. 175-177. This is hardly +reconcilable to fair dealing. Curry endeavours to discredit even +Warner's very moderate estimate; and affects to call him in one place +(p. 184) "a writer highly prejudiced against the insurgents," which is +grossly false. He praises Carte and Nalson, the only protestants he +does praise, and bestows on the latter the name of impartial. I wonder +he does not say that no one protestant was murdered. Dr. Lingard has +lately given a short account of the Ulster rebellion (_Hist. of +England_, x. 154), omitting all mention of the massacre, and +endeavouring in a note at the end of the volume, to disprove, by mere +scraps of quotation, an event of such notoriety, that we must abandon +all faith in public fame if it were really unfounded. + +[546] Carte, i. 253, 266; iii. 51; Leland, 154. Sir Charles Coote and +Sir William St. Leger are charged with great cruelties in Munster. The +catholic confederates spoke with abhorrence of the Ulster massacre. +Leland, 161; Warner, 203. They behaved, in many parts, with humanity; +nor indeed do we find frequent instances of violence, except in those +counties where the proprietors had been dispossessed. + +[547] Carte and Leland endeavour to show that the Irish of the pale +were driven into rebellion by the distrust of the lords justices, who +refused to furnish them with arms, after the revolt in Ulster, and +permitted the parliament to sit for one day only, in order to publish +a declaration against the rebels. But the prejudice of these writers +is very glaring. The insurrection broke out in Ulster, October 23, +1641; and in the beginning of December the lords of the pale were in +arms. Surely this affords some presumptions that Warner has reason to +think them privy to the rebellion, or, at least, not very averse to +it. P. 146. And, with the suspicion that might naturally attach to all +Irish catholics, could Borlase and Parsons be censurable for declining +to intrust them with arms, or rather for doing so with some caution? +Temple, 56. If they had acted otherwise, we should certainly have +heard of their incredible imprudence. Again, the catholic party, in +the House of Commons, were so cold in their loyalty, to say the least, +that they objected to giving any appellation to the rebels worse than +that of discontented gentlemen. Leland, 140. See too Clanricarde's +_Letters_, p. 33, etc. In fact, several counties of Leinster and +Connaught were in arms before the pale. + +It has been thought by some that the lords justices had time enough to +have quelled the rebellion in Ulster before it spread farther. Warner, +130. Of this, as I conceive, we should not pretend to judge +confidently. Certain it is that the whole army in Ireland was very +small, consisting of only nine hundred and forty-three horse, and two +thousand two hundred and ninety-seven foot. Temple, 32; Carte, 194. I +think Sir John Temple has been unjustly depreciated; he was master of +the rolls in Ireland at the time, and a member of the council--no bad +witness for what passed in Dublin; and he makes out a complete +justification, as far as appears, for the conduct of the lords +justices and council towards the lords of the pale and the catholic +gentry. Nobody alleges that Parsons and Borlase were men of as much +energy as Lord Strafford; but those who sit down in their closets, +like Leland and Warner, more than a century afterwards, to lavish the +most indignant contempt on their memory, should have reflected a +little on the circumstances. + +[548] "I perceived (says Preston, general of the Irish, writing to +Lord Clanricarde) that the catholic religion, the rights and +prerogatives of his majesty, my dread sovereign, the liberties of my +country, and whether there should be an Irishman or no, were the +prizes at stake." Carte iii. 120. Clanricarde himself expresses to the +king, and to his brother, Lord Essex, in January 1642, his +apprehension that the English parliament meant to make it a religious +war. Clanricarde's _Letters_, 61 _et post_. The letters of this great +man, perhaps the most unsullied character in the annals of Ireland, +and certainly more so than even his illustrious contemporary, the Duke +of Ormond, exhibit the struggles of a noble mind between love of his +country and his religion on the one hand, loyalty and honour on the +other. At a later period of that unhappy war, he thought himself able +to conciliate both principles. + +[549] Carte, ii. 221; Leland, 420. + +[550] Carte, ii. 216; Leland, 414. + +[551] Carte, 222 _et post_; Leland, 420 _et post_. + +[552] Carte, 258-316; Leland, 431 _et post_. + +[553] The statements of lands forfeited and restored, under the +execution of the act of settlement, are not the same in all writers. +Sir William Petty estimates the superficies of Ireland at 10,500,000 +Irish acres (being to the English measure nearly as eight to +thirteen), whereof 7,500,000 are of good land, the rest being moor, +bog, and lake. In 1641, the estates of the protestant owners and of +the church were about one-third of these cultivable lands, those of +catholics two-thirds. The whole of the latter were seized or +sequestered by Cromwell and the parliament. After summing up the +allotments made by the commissioners under the act of settlement, he +concludes that, in 1672, the English, protestants, and church have +5,140,000 acres, and the papists nearly half as much. _Political +Anatomy of Ireland_, C. 1. In Lord Orrery's _Letters_, i. 187 _et +post_, is a statement, which seems not altogether to tally with Sir +William Petty's; nor is that of the latter clear and consistent in all +its computations. Lawrence, author of "The Interest of Ireland +Stated," a treatise published in 1682, says, "Of 10,868,949 acres, +returned by the last survey of Ireland, the Irish papists are +possessed but of 2,041,108 acres, which is but a small matter above +the fifth part of the whole."--Part ii. p. 48. But, as it is evidently +below one-fifth, there must be some mistake. I suspect that in one of +these sums he reckoned the whole extent, and in the other only +cultivable lands. Lord Clare, in his celebrated speech on the Union, +greatly over-rates the confiscations. + +Petty calculates that above 500,000 of the Irish "perished and were +wasted by the sword, plague, famine, hardship, and banishment, between +the 23rd day of October 1641, and the same day 1652;" and conceives +the population of the island in 1641 to have been nearly 1,500,000, +including protestants. But his conjectures are prodigiously vague. + +[554] Petty is as ill satisfied with the restoration of lands to the +Irish, as they could be with the confiscations. "Of all that claimed +innocency, seven in eight obtained it. The restored persons have more +than what was their own in 1641, by at least one-fifth. Of those +adjudged innocents, not one in twenty were really so." + +[555] Carte, ii. 414 _et post_; Leland, 458 _et post_. + +[556] Leland, 493 _et post_; Mazure, _Hist. de la Revolut._ ii. 113. + +[557] M. Mazure has brought this remarkable fact to light. Bonrepos, a +French emissary in England, was authorised by his court to proceed in +a negotiation with Tyrconnel for the separation of the two islands, in +case that a protestant should succeed to the crown of England. He had +accordingly a private interview with a confidential agent of the lord +lieutenant at Chester, in the month of October 1687. Tyrconnel +undertook that in less than a year everything should be prepared. +_Id._ ii. 281, 288; iii. 430. + +[558] Leland, 537. This seems to rest on the authority of Leslie, +which is by no means good. Some letters of Barillon in 1687 show that +James had intended the repeal of the act of settlement. Dalrymple, +257, 263. + +[559] See the articles at length in Leland, 619. Those who argue from +the treaty of Limerick against any political disabilities subsisting +at present do injury to a good cause [1827]. + +[560] Irish Stat. 9 W. III. c. 2. + +[561] _Parl. Hist._ v. 1202. + +[562] 7 W. III. c. 4. + +[563] 7 W. III. c. 4. + +[564] 9 W. III. c. 3; 2 Anne, c. 6. + +[565] _Id._ + +[566] _Id._ + +[567] 7 W. III. c. 5. + +[568] 9 W. III. c. 1; 2 Anne, c. 3, s. 7; 8 Anne, c. 3. + +[569] Carte's _Ormond_, i. 328; Warner, 212. These writers censure the +measure as illegal and impolitic. + +[570] Leland says none; but by Lord Orrery's letters, i. 35, it +appears that one papist and one anabaptist were chosen for that +parliament, both from Tuam. + +[571] Mountmorres, i. 158. + +[572] Mountmorres, 3 W. & M. c. 2. + +[573] _Ibid._ i. 163; Plowden's _Hist. Review of Ireland_, i. 263. The +terrible act of the second of Anne prescribes only the oaths of +allegiance and abjuration for voters at elections. Sec. 24. + +[574] Such conversions were naturally distrusted. Boulter expresses +alarm at the number of pseudo-protestants who practised the law; and a +bill was actually passed to disable any one, who had not professed +that religion for five years, from acting as a barrister or solicitor. +_Letters_, i. 226. "The practice of the law, from the top to the +bottom, is almost wholly in the hands of these converts." + +[575] "Evidence of State of Ireland in Sessions of 1824 and 1825," p. +325 (as printed for Murray). In a letter of the year 1755, from a +clergyman in Ireland to Archbishop Herring, in the British Museum +(Sloane MSS. 4164, 11), this is also stated. The writer seems to +object to a repeal of the penal laws, which the catholics were +supposed to be attempting; and says they had the exercise of their +religion as openly as the protestants, and monasteries in many places. + +[576] Plowden's _Historical Review of State of Ireland_, vol. i. +_passim_. + +[577] Sir William Petty, in 1672, reckons the inhabitants of Ireland +at 1,100,000; of whom 200,000 English, and 100,000 Scots; above half +the former being of the established church. _Political Anatomy of +Ireland_, chap. ii. It is sometimes said in modern times, though very +erroneously, that the presbyterians form a majority of protestants in +Ireland; but their proportion has probably diminished since the +beginning of the eighteenth century. + +[578] Plowden, 243. + +[579] Irish Stat. 6 G. I. c. 5. + +[580] Mountmorres, ii. 142. As one house could not regularly transmit +heads of bills to the other, the advantage of a joint recommendation +was obtained by means of conferences, which were consequently much +more usual than in England. _Id._ 179. + +[581] _Id._ 184. + +[582] Carte's _Ormond_, iii. 55. + +[583] Vol. ii.; Mountmorres, i. 360. + +[584] Journals, 27th June 1698; _Parl. Hist._ v. 1181. They resolved +at the same time that the conduct of the Irish parliament, in +pretending to re-enact a law made in England expressly to bind +Ireland, had given occasion to these dangerous positions. On the 30th +of June they addressed the king in consequence, requesting him to +prevent anything of the like kind in future. In this address, as first +drawn, the legislative authority of the _kingdom of England_ is +asserted. But this phrase was omitted afterwards, I presume, as rather +novel; though by doing so they destroyed the basis of their +proposition, which could stand much better on the new theory of the +constitution than the ancient. + +[585] 5 G. I. c. 5; Plowden, 244. The Irish House of Lords had, +however, entertained writs of error as early as 1644, and appeals in +equity from 1661. Mountmorres, i. 339. The English peers might have +remembered that their own precedents were not much older. + +[586] See Boulter's _Letters_, passim. His plan for governing Ireland +was to send over as many English-born bishops as possible. "The +bishops," he says, "are the persons on whom the government must depend +for doing the public business here." I. 238. This of course disgusted +the Irish church. + +[587] Mountmorres, i. 424. + +[588] Plowden, 306 _et post_; Hardy's _Life of Lord Charlemont_. + + + + +INDEX + + + Abbe Gaultier, iii. 195 + + Abbot, Archbishop, i. 370, 386; ii. 35, 49, 75 + + Act of Uniformity, i. 110, 162, 189; ii. 309 + + Adamson, Archbishop of St. Andrews, iii. 276 + + _Advertisements_, i. 171 + + Aix la Chapelle, ii. 343, 361; iii. 122, 159, 259, 264 + + Albert, Archduke, i. 266 + + Alencon, Duke of, i. 136 + + Almanza, Battle of, iii. 206 + + Alva, Duke of, i. 128, 134; ii. 44 + + America, i. 290, 291; iii. 188, 192, 233 + + Anderson's _Reports_, i. 219, 358 + + Anderton, iii. 143, 144 + + Andrews, ii. 157 + + Andrews, Bishop of Winchester, ii. 58 + + Anglesea, Earl of, ii. 382, 416 + + Anglican church, i. 97, 107, 134, 162, 166, 171, 185, 201, 212, + 372, 381, 385; ii. 60, 61, 150, 157, 183, 185, 290, 291, 294, 306, + 307, 311, 321, 353, 419, 420; iii. 47, 50, 67, 69, 70, 90, 153, + 156, 183, 215, 216, 218, 219, 274, 280, 353 + + Anglo-Irish, iii. 306, 320, 321, 334, 350, 353 + + Anglo-Norman, iii. 266, 309 + + Anglo-Saxon, ii. 120; iii. 267 + + Anjou, Duke of, i. 136, 217; iii. 185 + + Anne, Princess, iii. 159, 160, 178 + + Anne, Queen, iii. 175, 177, 179, 183, 184, 185, 198, 207, 212, + 216, 217, 218, 245, 255, 260, 261, 263, 296, 350, 352 + + Anne Boleyn, i. 34, 35, 36, 37, 61, 68, 97; ii. 59 + + Anne of Brittany, i. 18 + + Anne of Cleves, i. 33 + + Anne of Denmark, iii. 88, 89 + + Antwerp, i. 81 + + _Arbitrary taxation_, i. 354 + + Argyle, Earl of, iii. 284, 285 + + Arianism, i. 94 + + Arlington, ii. 339, 341, 347, 350, 360 + + Armada, i. 138; ii. 121 + + Arminian, i. 371 + + Armorica, iii. 299 + + Armstrong, Sir Thomas, ii. 418; iii. 142 + + Arnot, iii. 284, 292 + + Arragon, iii. 191 + + Articuli Cleri, i. 301, 311 + + Arundel, Earl of, i. 147, 351; ii. 13, 347, 350; iii. 32, 58 + + Arundels, The, i. 49, 128, 217, 347 + + Ascham, i. 202; ii. 229 + + Ashburnham, ii. 159, 169, 195 + + Ashby, iii. 37, 240, 241, 247, 249 + + Ashton, iii. 143 + + Atkinson, Mr., i. 112 + + Atlantic, iii. 121 + + Atterbury, Bishop, iii. 214, 215, 221, 222 + + Augsburgh, i. 87 + + Austria, i. 114, 115, 120, 330; iii. 121, 189, 190, 191, 221 + + Aylesbury, iii. 240, 241, 247, 249 + + Aylmer of London, i. 191 + + + Babington, i. 145, 152 + + Bacon, Antony, i. 243, 314, 321, 323, 366, 378 + + Bacon, Francis, i. 15, 18, 54, 106, 123, 192, 202, 213, 236, 257, + 258, 292, 295, 303, 311, 333; ii. 28, 378; iii. 331 + + Baillie's _Letters_, ii. 106, 139, 149, 156, 161, 179, 180, 187 + + Balmerino, iii. 283 + + Banbury, iii. 17 + + Bancroft, i. 311, 365, 366 + + Bangor, Bishop of, iii. 215 + + Bank of England, iii. 120 + + Banks, ii. 16, 19 + + Barberini, Cardinal, ii. 61, 64, 65 + + Barebone, ii. 222 + + Barillon, ii. 368; iii. 44, 47, 48, 57, 62, 70 + + Barnardiston, Sir Samuel, iii. 21 + + Barnes, Doctor, i. 33 + + _Basilicon Doron_, i. 330 + + Bates, i. 311, 312, 363 + + Battle, i. 69 + + Baxter, ii. 163, 201, 293, 316, 356; iii. 153 + + Beauchamp, Lord, i. 206, 271, 272 + + Bedford, Earl of, i. 101, 173; ii. 109, 133, 138, 144 + + Bellasis, Lord, iii. 58 + + Bellay, Bishop of Bayonne, i. 67 + + Bennet, Sir John, i. 332 + + Benstead, iii. 140 + + Bentinck, iii. 166 + + Berkely, Lord, iii. 348 + + Berkley, Sir John, ii. 193, 194 + + Berwick-upon-Tweed, ii. 79; iii. 12, 34 + + Beza, i. 172 + + Birch's _Memoirs_, i. 192, 211; ii. 176 + + Birmingham, iii. 33 + + Blackstone, i. 14 + + Blair, Sir Adam, ii. 407 + + Blake, ii. 241 + + Blenheim, iii. 184 + + Blount, John, iii. 245 + + Bolingbroke, ii. 349; iii. 193, 196, 203, 205, 260, 261 + + Bolton, Lord Chancellor, iii. 355 + + Boniface of Este, iii. 160 + + Bonner, i. 94, 113, 114 + + Bonrepos, iii. 62 + + Booth, Sir George, ii. 254 + + Borlase, Sir John, iii. 341 + + Bosworth, i. 13 + + Boucher, Joan, i. 94 + + Boucher, John, i. 84 + + Bourbon, House of, iii. 185, 189 + + Boyer's _Historical Register_, iii. 262 + + Boyne, iii. 349 + + Bradshaw, ii. 225 + + Brady, Dr. iii. 37, 38 + + Brandon, Eleanor, i. 118 + + Brandon, Mary, i. 124 + + Brandt's _History of Reformation in Low Countries_, i. 83 + + Breda, ii. 290, 291, 312, 317 + + Brehon, iii. 301, 313, 318 + + Bremen, iii. 212 + + Brihuega, iii. 189 + + Bristol, Earl of, i. 351, 352, 384; ii. 333; iii. 34 + + _British Empire under Charles I_., i. 54 + + British Museum, iii. 2 + + Broghill, ii. 245, 246, 258 + + Brook, Lord, ii. 52 + + Browne, i. 71 + + Bruce, Edward, iii. 313 + + Brunswick, House of, iii. 81, 82, 160, 161, 202, 203, 212, 222, 224 + + Brussels, i. 111, 228 + + Bucer, Martin, of Strasburgh, i. 88, 89, 100 + + Buckhurst, Lord, i. 303 + + Buckingham, Countess of, ii. 66 + + Buckingham, Duke of, i. 30, 31, 56, 324, 343, 344, 345, 348, 349, + 379, 384; ii. 7, 35, 37, 255, 339, 343, 351, 360; iii. 184, 196 + + Bullinger, i. 100, 171, 372 + + Burgundy, Duke of, iii. 192 + + Burleigh, Lord, i. 130, 133, 134, 142, 144, 156, 190, 191, 210, + 218, 220, 229, 230, 231 + + Burnet, Bishop, i. 27, 33, 34, 38, 39, 40, 41, 43, 44, 46, 48, + 56, 59, 60, 61, 62, 64, 66, 67, 68, 69, 70, 71, 75, 77, 80, 82, + 83, 84, 88, 89, 91, 92, 93, 95, 98, 99, 100, 101, 102, 103, 107, + 108, 126, 156, 164, 165, 166, 173, 175, 181, 213; ii. 98, 149, + 178, 315, 319, 326, 328, 332, 353, 362, 393, 398, 425; iii. 44, + 58, 62, 67, 80, 84, 89, 98, 100, 101, 105, 107, 108, 117, 129, + 145, 154, 155, 156, 158, 159, 171, 179, 185, 215 + + Burton, iii. 243 + + Butler, C., _Memoirs of English Catholics_, i. 97, 111, 116, 167, + 378; iii. 159, 316 + + + Cabala, i. 384 + + Cadiz, iii. 121 + + Calais, i. 91, 102; iii. 34 + + Calamy, ii. 317 + + Calvert, i. 338, 340 + + Calvin, i. 88, 89, 94, 100, 109, 162, 204, 367, 372, 373, 374, + 386; ii. 49, 50, 57, 70, 319, 353, 392, 420; iii. 50, 274 + + Cambridge, i. 67, 174, 176 + + Cambridge, Duke of, iii. 201 + + Camden, i. 115, 121, 123, 129, 222, 223, 230, 232, 324 + + Cameron, iii. 291 + + Cameronian Rebellion, iii. 286, 287 + + Campbell, iii. 287 + + Campegio, Cardinal, i. 62 + + Campian, i. 140 + + Cann, Sir Robert, ii. 404 + + Canterbury, i. 92, 96, 181, 182, 186; ii. 35; iii. 3, 213 + + Canterbury, Archbishop of, i. 66, 98, 224; ii. 74, 214 + + Cargill, iii. 291 + + Carisbrook, ii. 196 + + Carleton, Sir Dudley, i. 373 + + Carlow, iii. 307 + + Carmarthen, iii. 108 + + Carte, i. 46, 227, 315, 317, 325, 327, 333, 378 + + Carter, i. 308, 314, 316, 325; iii. 342, 343, 345, 346, 347, 348 + + Carteret, Sir Edward, ii. 172 + + Carteret, Sir George, ii. 328 + + Cartwright, Thomas, i. 176, 177, 178, 179, 183, 195, 196, 203 + + Catalonia, iii. 189, 191 + + Catherine of Arragon, i. 61, 62, 63, 67 + + Catherine Howard, i. 36 + + Catholics, i. 90, 93 + + Cato, iii. 32 + + Cawdrey, i. 365 + + Cecil, Sir R., i. 106, 110, 122, 123, 127, 131, 134, 135, 149, + 155, 165, 173, 191, 210, 212, 230, 231, 244, 246, 257, 258, 309, + 310, 314 + + Cecill, Sir W., i. 220 + + Celtic, iii. 299 + + Celtic tribes, i. 7; iii. 322 + + Chambers, Richard, ii. 6, 15 + + Channel, i. 77 + + Channel Fleet, iii. 128 + + Charenton, ii. 58 + + Charles, Archduke, i. 119, 135; iii. 185, 189 + + Charles, Prince, i. 343 + + Charles Edward, iii. 225 + + Charles I., i. 326, 347, 349, 352, 359, 360, 361, 382, 384, 386, + 387; ii. 1, 3, 7, 8, 11, 12, 18, 21, 22, 24, 25, 26, 30, 31, 33, + 37, 38, 40, 52, 53, 65, 67, 73, 82, 84, 100, 103, 113, 117, 123, + 124, 126, 131, 133, 135, 136, 138, 141, 145, 152, 159, 166, 167, + 168, 169, 170, 171, 176, 177, 185, 187, 193, 194, 195, 197, 199, + 204, 206, 207, 209, 210, 211, 212, 216, 217, 228, 229, 230, 234, + 239, 240, 252, 255, 256, 266, 267, 270, 271, 273, 274, 280, 281, + 285, 286, 287, 290, 295, 303, 312, 313, 315, 322, 328, 330, 332, + 335, 344, 351, 352, 367, 372, 389, 394, 395, 397, 400, 401, 403, + 406, 423, 424, 425; iii. 17, 22, 26, 35, 75, 131, 140, 161, 166, + 243, 249, 260, 281, 282, 285, 336, 337, 340, 354 + + Charles II., i. 272, 355; ii. 183, 232, 269, 270, 278, 297, 298, + 305, 321, 322, 324, 342, 343, 345, 358, 361, 364, 370, 393, 413, + 418, 420, 423; iii. 1, 2, 6, 11, 13, 14, 31, 42, 43, 50, 60, 78, + 83, 93, 94, 99, 100, 103, 127, 132, 133, 137, 141, 142, 143, 151, + 158, 182, 189, 213, 218, 226, 244, 284, 286, 287, 298, 335, 344, + 347, 348, 349 + + Charles V., i. 63, 93, 264 + + Charles VIII., i. 18 + + Charles IX., i. 131; iii. 74 + + Chelsea, i. 72 + + Cheshire, iii. 182 + + Chester, iii. 32, 34, 306 + + Chichester, Sir Arthur, iii. 331, 332 + + Chillingworth, ii. 67, 68, 69, 151, 185 + + Chippenham, iii. 42 + + Christ Church, Oxford, i. 70, 171; iii. 69 + + Christian faith, i. 82 + + Cicero de Legibus, i. 202 + + Cisalpine school, i. 67 + + Civil rights, i. 8 + + Clanricarde, Earl of, iii. 323, 339 + + Clare, Earl of, ii. 144; iii. 338, 349 + + Clarence, Duke of, i. 29, 30, 32, 267 + + Clarendon, i. 352; ii. 11, 12, 13, 21, 54, 58, 60, 61, 70, 71, + 72, 74, 75, 77, 78, 80, 81, 84, 88, 94, 101, 102, 103, 104, 105, + 113, 114, 119, 124, 125, 129, 134, 136, 140, 141, 143, 145, 146, + 152, 154, 155, 158, 162, 163, 167, 169, 171, 173, 186, 187, 188, + 190, 196, 198, 199, 200, 211, 212, 224, 227, 229, 232, 241, 253, + 254, 255, 263, 264, 265, 267, 270, 272, 279, 284, 285, 295, 296, + 299, 303, 305, 306, 308, 310, 312, 315, 318, 325, 326, 328, 330, + 331, 332, 333, 336, 337, 338, 340, 342, 344, 374, 377; iii. 3, 6, + 9, 10, 58, 84, 163, 176, 213, 217, 344 + + Clement VII., Pope, i. 62, 67, 267 + + Cleves, i. 310 + + Clifford, ii. 341, 347, 361 + + Clovis, i. 259 + + Coke, Lord, i. 301, 310, 311, 312, 318, 321, 322, 324, 333, 335, + 339, 342, 359; ii. 22, 28, 89, 298; iii. 41, 54, 87, 140, 311, + 355 + + Coldstream, The, ii. 288 + + Coleman, ii. 384, 386, 389 + + Colepepper, ii. 110, 132, 168, 169, 170, 171; iii. 238 + + _Collectanea Juridica_, i. 52 + + Collier, i. 61, 70, 71, 82, 84, 85, 87, 90, 92, 99, 100, 113, + 163, 212, 325, 372, 378, 386; ii. 50, 58, 104, 211, 292, 295 + + Colnbrook, ii. 140 + + Common Pleas, i. 10 + + Commons, The, i. 13, 21, 23, 27, 42, 46, 47, 49, 55, 64, 112, + 119, 120, 124, 133, 138, 180, 181, 197, 198, 199, 231, 232, 233, + 234, 235, 236, 243, 245, 246, 247, 250, 251, 252, 253, 254, 255, + 256, 280, 281, 282, 284, 285, 286, 287, 288, 289, 290, 291, 292, + 293, 299, 301, 303, 306, 307, 309, 312, 313, 314, 315, 316, 317, + 318, 330, 332, 333, 334, 335, 336, 337, 338, 341, 344, 345, 346, + 348, 349, 350, 351, 353, 359, 360, 361, 363, 364, 365, 366, 370, + 374, 385, 387; ii. 1, 2, 4, 9, 17, 22, 81, 82, 85, 86, 90, 93, + 94, 97, 98, 101, 102, 103, 104, 105, 108, 109, 110, 111, 112, + 116, 123, 124, 127, 130, 132, 134, 135, 137, 138, 143, 146, 147, + 151, 152, 156, 165, 180, 182, 183, 185, 187, 189, 192, 197, 202, + 203, 205, 212, 213, 214, 215, 216, 220, 226, 238, 239, 248, 262, + 268, 270, 273, 274, 279, 280, 283, 287, 295, 297, 302, 304, 310, + 317, 320, 324, 325, 327, 334, 345, 346, 353, 359, 368, 370, 372, + 375, 376, 379, 390, 396, 397, 398, 402, 403, 407, 409, 410, 425; + iii. 3, 7, 8, 10, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, + 27, 28, 29, 32, 33, 34, 36, 37, 42, 44, 45, 50, 52, 53, 76, 82, + 84, 85, 86, 87, 89, 90, 91, 92, 99, 101, 102, 103, 106, 111, 112, + 117, 123, 124, 125, 127, 130, 132, 134, 144, 151, 154, 158, 161, + 162, 164, 165, 167, 168, 169, 170, 171, 182, 184, 185, 205, 206, + 208, 209, 210, 215, 218, 227, 229, 231, 232, 233, 234, 235, 237, + 238, 240, 241, 247, 251, 285, 295, 311, 319, 320, 335, 340, 344, + 346, 351, 353, 354, 355, 357 + + _Commonwealth of England_, i. 50, 54; ii. 212 + + Compton, Sir William, i. 64 + + Cowell's _Interpreter_, i. 302, 303 + + Confirmatio Chartarum, ii. 17 + + _Conformity, Act of_, i. 170 + + Connaught, iii. 301, 305, 310, 313, 318, 324, 325, 335, 338, 345 + + Continent, The, i. 80, 87 + + Cork, iii. 313, 323, 328, 331, 339 + + Cornish, iii. 142 + + Cornwall, i. 47; ii. 152; iii. 35 + + _Corporation Act_, ii. 300 + + Cottington, Lord, ii. 11, 12, 36, 41, 60, 61, 62, 79, 155, 159, 227 + + Cotton, Sir Roger, ii. 25 + + Courtin, ii. 366 + + Court of Chancery, ii. 223 + + Coventry, Sir John, ii. 355 + + Coventry, Sir William, ii. 344 + + Coverdale, i. 81 + + Cowper, iii. 184 + + Cox, Bishop, i. 113, 163, 164, 166, 210 + + Coxe's _Memoirs_, iii. 233, 256 + + Cranmer, Archbishop, i. 33, 66, 68, 80, 82, 83, 84, 90, 91, 93, + 94, 95, 96, 97, 99, 109, 162, 177, 367, 372; ii. 310 + + Crassi, iii. 39 + + Crawley, ii. 20, 81 + + Crew, i. 315 + + Crighton, iii. 284 + + Croke, ii. 20 + + Cromer, iii. 319 + + Cromwell, Henry, ii. 244, 254 + + Cromwell, Oliver, ii. 238, 239, 240, 241, 242, 243, 246, 247, + 252, 253, 254, 255, 258, 288, 289, 313, 322; iii. 284, 344, 345, + 347 + + Cromwell, Richard, ii. 244, 258 + + Cromwell, Thomas, i. 26, 32, 33, 49, 70, 71, 77; ii. 52, 59, 111. + 116, 137, 138, 140, 156, 159, 164, 165, 166, 185, 188, 190, 191, + 193, 197, 198, 204, 209, 217, 218, 219, 221, 222, 224, 225, 226, + 229, 231, 233, 235, 236, 237 + + Crown, The, i. 8, 10, 11, 15, 19, 27, 44, 55, 67, 72, 73, 77, + 108, 162, 179, 182, 184, 189, 197, 210, 219, 221, 224, 232, 235, + 236, 239, 240, 244, 246, 247, 261, 269, 272, 283, 284, 289, 292, + 296, 297, 299, 301, 306, 315, 319, 324, 325, 330, 342, 345, 348, + 349, 356, 366, 382; ii. 6, 19, 20, 23, 24, 25, 31, 36, 40, 42, + 43, 45, 46, 47, 48, 51, 72, 79, 81, 87, 88, 90, 91, 92, 95, 98, + 102, 108, 117, 119, 124, 126, 127, 130, 133, 158, 163, 179, 182, + 183, 195, 198, 213, 273, 275, 276, 279, 283, 285, 287, 290, 300, + 302, 303, 323, 324, 345, 387, 397, 402, 406, 409, 412, 415, 419; + iii. 6, 11, 12, 14, 17, 22, 25, 30, 31, 34, 35, 36, 43, 45, 46, + 53, 54, 56, 62, 65, 71, 77, 81, 82, 85, 86, 87, 88, 89, 90, 91, + 92, 101, 102, 103, 106, 125, 131, 144, 146, 147, 154, 155, 159, + 160, 161, 162, 163, 164, 166, 167, 168, 169, 171, 172, 175, 176, + 177, 180, 185, 188, 201, 202, 208, 209, 210, 215, 219, 226, 229, + 230, 232, 233, 252, 253, 254, 256, 257, 270, 274, 275, 277, 278, + 279, 280, 281, 282, 287, 289, 300, 306, 310, 313, 324, 325, 329, + 330, 331, 332, 333, 334, 335, 338, 339, 343, 354, 355, 357 + + Culloden, iii. 224 + + Cumberland, i. 13 + + Cumberland, Countess of, i. 271, 273 + + Cumberland, Earl of, i. 118 + + Cunningham, iii. 183 + + + Dalrymple, ii. 343, 348, 350, 351, 352, 365, 424, 425; iii. 44, + 47, 74, 106, 108, 121, 267, 268 + + Danby, Lord, ii. 361, 363, 364, 366, 369, 372, 374, 375, 376, + 381, 382, 389; iii. 62, 73, 85, 98 + + Darcy, Patrick, iii. 355 + + Darnley, i. 126, 128 + + Davenant, ii. 63 + + David II., iii. 267, 268 + + Davis, iii. 307, 314 + + De Burgh, iii. 306, 310 + + De Courcy, iii. 306, 312 + + D'Ewes, i. 181, 182, 197, 198, 211, 233, 234, 247, 248, 255, 260, + 334 + + Delamere, Lord, iii. 73 + + Denison, Mr. Justice, iii. 248 + + Denmark, Princess of, iii. 160 + + Derry, iii. 349 + + Desborough, ii. 250 + + Desmond, Earl of, iii. 311, 317, 318, 322, 323, 331 + + Devonshire, Earl of, iii. 73, 74 + + Digby, Lord, i. 338; ii. 80, 99, 155, 159, 175 + + Digges, i. 314, 316, 342, 350 + + Doddridge, i. 323 + + Dodd's _Church History_, i. 139 + + Domesday Book, ii. 16; iii. 38 + + Doneraile, iii. 331 + + Dorislaus, ii. 229 + + Dorset, Lord, i. 98, 118 + + Douay, i. 132, 140, 142 + + Downing, Sir George, ii. 325 + + Drake, i. 71, 155 + + Dublin, ii. 175, 254; iii. 305, 306, 308, 314, 315, 317, 319, + 329, 348, 349 + + Dudley, i. 19, 21, 119 + + Dunkirk, ii. 336, 337, 343 + + Duppa, ii. 170 + + Durham, iii. 32, 35 + + Durham, Bishop of, i. 98, 173 + + Dutch provinces, iii. 14, 78, 125, 157 + + Dyer's Reports, i. 294 + + Dykvelt, iii. 62 + + + Eastern churches, i. 90 + + East India Company, iii. 20, 21 + + Edgehill, ii. 130, 132, 208 + + Edward I., i. 16, 69; ii. 8, 18, 118, 120; iii. 32, 33, 36, 37, + 38, 309 + + Edward II., i. 9, 301; ii. 118 + + Edward III., i. 15, 25, 35, 39, 41, 55, 56, 69, 217, 231, 293, + 356; ii. 7, 17, 18, 26, 86, 91, 95, 97, 118, 119, 375, 406; iii. + 25, 28, 33, 134, 137, 138, 142, 144, 147, 205, 309, 310, 311, + 312, 334 + + Edward IV., i. 14, 15, 16, 18, 29, 30, 357; ii. 298; iii. 16, 25, + 30, 37, 39, 316, 354 + + Edward VI., i. 39, 40, 42, 46, 47, 49, 54, 73, 83, 84, 85, 87, + 89, 90, 92, 97, 98, 101, 104, 107, 109, 118, 162, 163, 166, 176, + 181, 210, 217, 222, 253, 256; iii. 34, 141, 142, 145, 234, 318 + + Egerton, i. 311 + + Eleanor, i. 118 + + Eliot, Sir John, i. 350; ii. 2, 3, 4, 5, 37, 43; iii. 1 + + Elizabeth, Queen, i. 37, 41, 45, 47, 49, 50, 55, 73, 77, 79, 89, + 101, 102, 104, 105, 106, 110, 111, 113, 114, 115, 118, 119, 120, + 122, 124, 125, 126, 128, 129, 131, 133, 135, 137, 138, 141, 142, + 147, 150, 151, 153, 154, 156, 157, 159, 160, 161, 163, 164, 165, + 166, 167, 168, 169, 170, 175, 177, 179, 180, 184, 185, 187, 197, + 198, 210, 211, 213, 215, 217, 218, 221, 222, 225, 226, 227, 228, + 229, 230, 231, 232, 233, 234, 235, 237, 238, 239, 241, 242, 245, + 246, 247, 248, 250, 253, 258, 260, 262, 263, 264, 265, 266, 269, + 272, 275, 278, 295, 301, 309, 311, 358, 365, 372, 374; ii. 8, 10, + 17, 22, 26, 28, 29, 30, 38, 43, 58, 89, 90, 121, 123, 300, 304, + 307, 331, 342, 358, 391, 404, 420; iii. 7, 16, 17, 26, 27, 29, + 31, 32, 34, 35, 57, 61, 115, 137, 140, 152, 155, 213, 237, 304, + 318, 320, 321, 322, 323, 326, 335, 351 + + Ellis's _Letters_, i. 20, 22, 41 + + Ely, Bishop of, i. 98 + + Empson, i. 19, 21 + + Episcopius, ii. 70 + + Erastianism, i. 109 + + _Erudition_, i. 80 + + Essex, Earl of, i. 33, 309, 311, 315; ii. 109, 132, 136, 144, + 147, 155, 343, 381, 400, 414 + + Europe, i. 63, 65, 87, 178, 233, 367; iii. 121, 122, 124, 130, + 169, 185, 189, 221, 222, 228, 237, 254, 272, 302, 303, 304 + + European monarchies, i. 15 + + Evelyn, Sir John, ii. 213 + + Ewer, Sir Ralph, i. 28 + + Exchequer, The, i. 10 + + Exeter, i. 92 + + Eyre, Chief Justice, iii. 147 + + + Fagg, Sir John, iii. 22 + + Fairfax, ii. 152, 164, 165, 166, 188, 191, 197, 253, 258 + + Falkland, Lord, ii. 43, 70, 107, 110, 132, 301 + + Falmouth, iii. 33 + + Farnese, Cardinal, 267 + + Feckenham, Abbot of Westminster, i. 113 + + Felton, i. 131 + + Fenwick, Sir John, iii. 116, 117, 118, 222 + + Fenwick, Lady Mary, iii. 117 + + Ferdinand of Aragon, i. 29, 114, 115, 119 + + Fergus, i. 279 + + Ferrers, Earl, i. 36, 250, 251; iii. 236 + + Feversham, iii. 80 + + Filmer, Sir Robert, ii. 422, 423 + + Fisher, Bishop, i. 30, 64, 69; ii. 66 + + Fitzgerald, iii. 310, 315 + + Fitz-Stephen, iii. 304 + + Flanders, ii. 77; iii. 189, 190, 191 + + Fleet Prison, i. 54, 116 + + Fleetwood, ii. 235, 246, 248, 257, 261 + + Flemish provinces, i. 81, 132; iii. 266 + + Fleury, Cardinal, iii. 222 + + Florence, i. 63 + + Floyd, iii. 243, 245 + + Forbes's _State Papers_, i. 125 + + Fortesque, i. 263, 279, 280, 281 + + Foster, Mr. Justice, iii. 137, 139, 248 + + Foulis, Sir David, ii. 39 + + Fox, Bishop of Hereford, i. 70; iii. 151, 232 + + France, i. 13, 20, 21, 25, 38, 102, 106, 115, 124, 127, 134, 213, + 258, 267, 314, 384; ii. 46, 63, 79, 121, 161, 166, 168, 172, 194, + 200, 227, 312, 336, 337, 342, 346, 350, 351, 353, 361, 370, 384, + 394, 422, 424; iii. 72, 76, 119, 121, 123, 143, 159, 185, 186, + 190, 191, 198, 205, 206, 221, 222, 230, 299, 303, 306, 307, 348, + 350 + + Francis I., i. 26, 39, 63, 118, 259 + + Francis II., i. 124 + + Frankfort, i. 163, 166 + + Frideswide, St., i. 70 + + Fuller's _Church History_, i. 113 + + + Gage, Colonel, ii. 77 + + Gallican school, i. 67 + + Galway, iii. 340, 349 + + Gardiner, i. 44, 45, 83, 94, 95 + + Gatton, iii. 34 + + Gauden, ii. 211, 212 + + Geneva, i. 45, 163, 166 + + George I., iii. 96, 141, 163, 167, 175, 179, 202, 203, 204, 209, + 211, 212, 227, 228, 244, 255, 256, 258, 262, 297, 352 + + George II., iii. 89, 159, 175, 177, 179, 220, 223, 245, 248, 258, + 259, 261, 263, 264, 265, 352, 353, 356 + + George III., i. 73, 252; iii. 137, 154, 172 + + Geraldine, House of, iii. 310, 312, 331 + + Gerard, ii. 232 + + Germany, i. 58, 68, 81, 86, 90, 91, 93, 97, 163, 178; ii. 63, + 127, 159, 169, 171; iii. 225, 256, 259, 306, 322 + + Gertruydenburg, iii. 186, 187, 191 + + Gibraltar, iii. 227 + + Gifford, iii. 68 + + Glamorgan, Earl of, ii. 175, 176, 177 + + Glanville, iii. 36, 41 + + Glastonbury, i. 32, 69, 76 + + Glencoe, iii. 293 + + Gloucester, i. 100, 305; ii. 139, 147, 204, 217 + + Gloucester, Duke of, iii. 83, 160 + + Glyn, ii. 232 + + Godfrey, Sir Edmondbury, ii. 385, 389 + + Godolphin, iii. 98, 108, 117, 131, 184, 186, 187, 190 + + Godstow, Nunnery of, i. 75 + + Goodman, i. 45; iii. 116 + + Goodwin, i. 279, 280, 281, 286 + + Goring, ii. 163 + + Gothic tribes, i. 7 + + Gould, iii. 247 + + Gowrie, Earl of, iii. 284 + + Grafton, i. 82 + + Graham, iii. 243 + + Grand Alliance, iii. 185 + + Granville, ii. 44; iii. 257, 259 + + Great Britain, iii. 105, 192, 193, 212, 256, 295, 299, 314, 353, + 356 + + Great Charter, i. 259 + + Greece, iii. 309 + + Greek, i. 84, 90 + + Greenwich, i. 72 + + Gregory VII., i. 178 + + Gregory XIII., i. 141 + + Gregory XV., i. 380 + + Grenville, Sir John, ii. 262; iii. 42 + + Grenville Act, iii. 36 + + Grey, i. 118 + + Grey, Sir Arthur, iii. 323 + + Grey, Lady Catherine, i. 118, 122, 123, 233, 273 + + Grey, Lady Jane, i. 36, 43, 96, 118, 123; ii. 420 + + Grey, Lord Leonard, iii. 317 + + Grimston, ii. 273 + + Grindal, Bishop, i. 110, 164, 166, 171, 173, 183 + + Grosser, i. 232 + + Grotius, ii. 60 + + Gualter, i. 172 + + Guernsey, iii. 12 + + Guildhall, iii. 9 + + Guise, Duke of, i. 111 + + + Habington, i. 217 + + Hacker, ii. 280, 281 + + Hacket, ii. 32 + + Hague, The, iii. 72, 186 + + Hale, Lord, i. 51, 53, 126; ii. 341; iii. 7 + + Hale, Sir Matthew, ii. 272; iii. 16, 22, 87, 136, 138, 140, 141 + + Hales, Sir Edward, iii. 54, 55 + + Hales, John, ii. 69, 151, 186 + + Hale's Treatise, iii. 23 + + Halifax, Lord, ii. 405, 425; iii. 43, 62, 72, 73, 90, 98, 131, + 165, 184 + + Hall, Arthur, iii. 234 + + Hall, Bishop of Exeter, ii. 58, 63 + + Hamburgh, i. 82 + + Hamilton, Duke of, ii. 197; iii. 198, 284 + + Hampden, John, ii. 15, 16, 17, 20, 45, 52, 81, 87, 109, 116, 133, + 137, 141, 301; iii. 1 + + Hampton Court, i. 128, 277; ii. 191, 194, 196; iii. 279 + + Hanover, i. 231; iii. 161, 163, 193, 196, 198, 200, 201, 203, + 211, 212, 219, 221, 227, 255, 256, 258, 297, 352 + + Harcourt, iii. 197, 203 + + _Hardwicke Papers_, i. 380, 381, 382; iii. 229, 253 + + Harfager, Egbert, iii. 304 + + Harfager, Harold, iii. 304 + + Hargrave, i. 363; ii. 87; iii. 9, 17, 22, 24, 104, 245, 250 + + Harleian MS., i. 155 + + Harley, iii. 161, 184, 195, 198 + + Harley, Sir Robert, ii. 108 + + Harmer's _Observations on Burnet_, i. 75, 92 + + Harrington, i. 211; iii. 87 + + Harrison, ii. 222 + + Haslerig, ii. 225 + + Haslerig, Sir Arthur, ii. 52, 280, 300 + + Hatton, Sir C., i. 220, 221, 225, 246; ii. 9, 257 + + Hawkins, i. 14, 225 + + Haynes, i. 110, 119, 127, 230 + + Hearne, i. 71, 175 + + Heath, Archbishop, i. 106, 117 + + Helvetian Protestants, i. 88, 89, 99 + + Henrietta Maria, i. 382; ii. 64, 66, 143, 167, 172 + + Henry, Prince, i. 308, 326 + + Henry of Lion, iii. 160 + + Henry II., i. 12, 259, 301; ii. 120, 377; iii. 266, 299, 302, + 304, 305, 307, 308, 312, 317 + + Henry III., iii. 267, 307 + + Henry IV., i. 56, 235, 310, 334; ii. 119, 325, 326; iii. 16, 25 + + Henry V. i. 248 + + Henry VI., i. 14, 48, 59, 293, 320, 357; ii. 379; iii. 16, 354 + + Henry VII., i. 8, 10, 13, 15, 16, 17, 18, 21, 25, 26, 29, 30, 31, + 33, 34, 35, 38, 42, 43, 49, 52, 54, 55, 56, 59, 77, 118, 228, + 256, 274, 294, 356; ii. 26, 27, 30, 88, 119, 218, 298, 391, 397; + iii. 26, 30, 55, 86, 160, 255, 314, 315, 316 + + Henry VIII., i. 19, 20, 21, 28, 29, 30, 36, 39, 46, 48, 49, 52, + 54, 57, 58, 59, 60, 61, 64, 65, 66, 70, 71, 72, 74, 75, 76, 77, + 80, 81, 83, 86, 90, 92, 96, 97, 101, 107, 109, 176, 233, 256, + 259, 262, 267, 269, 270, 294, 315, 321; ii. 3, 16, 23, 26, 27, + 30, 38, 59, 98, 107, 119, 121, 123, 411; iii. 2, 26, 30, 32, 34, + 157, 213, 236, 255, 282, 316, 317, 319, 334 + + Hereford, i. 306; ii. 89 + + Hertford, Earl of, i. 122, 271, 272, 325; ii. 78, 132; iii. 35 + + Hewit, ii. 232 + + Hexham Abbey, i. 75 + + Heylin, i. 368; ii. 53, 57, 59, 63, 66, 70 + + _Hibernica_ of Harris, iii. 355 + + _History of English Law_, i. 17 + + _History of the Law_, i. 59 + + Hoadley, Bishop, iii. 81, 176, 215, 220 + + Hobbes, iii. 176 + + Hobby, Sir Philip, i. 92 + + Hobert, i. 323 + + Holingshed, i. 136, 139, 232, 250, 251 + + Holland, i. 83, 310; ii. 109, 144, 200, 227, 240, 324, 350, 354; + iii. 61, 72, 105, 121, 123, 124, 259 + + Holland, Earl of, ii. 145, 146, 351 + + Holland, Sir John, iii. 182, 190 + + Holles, ii. 2, 3, 5, 6 + + Hollis, ii. 116, 179, 189, 282, 346, 368, 369 + + Holt, iii. 143, 149, 240, 241, 247 + + Hooker's _Ecclesiastical Polity_, i. 201, 202, 203, 204, 205, + 206, 207, 208, 209, 262; ii. 310; iii. 87 + + Hooper, i. 100 + + Horn, Bishop, i. 113, 114 + + Hotham, ii. 208 + + Howard, Lord, ii. 415, 416 + + Hubert, Lord, i. 21, 29 + + Hudson, ii. 26, 28 + + Hull, ii. 208, 348 + + Hume, i. 222, 229, 230, 237, 248, 264, 344, 348, 352; ii. 40, 77, + 101, 176, 223, 224, 384, 386; iii. 106 + + Humphrey, i. 171 + + Hun, i. 59 + + Huntingdon, i. 173 + + Hutchinson, ii. 148, 206, 207, 220, 298, 335 + + Hutton, ii. 45 + + Hyde, Sir Edward, ii. 328, 395; iii. 7 + + Hyde, Sir Nicholas, i. 358, 361; ii. 75, 89, 110, 134, 172, 227, + 257 + + + _Icon Basilike_, ii. 211, 212 + + Ilchester, iii. 35 + + Indies, iii. 185 + + Innocent X., Pope, ii. 227 + + _Institution_, i. 80 + + Ireland, ii. 94, 254; iii. 12, 162, 266, 299, 300, 303, 304, 306, + 307, 308, 311, 312, 314, 315, 316, 318, 319, 321, 327, 331, 334, + 336, 337, 343, 350, 351, 353, 354, 355, 356, 357 + + Ireton, ii. 196, 198 + + Italy, i. 63; iii. 185 + + + Jacobite, i. 231; iii. 83, 96, 106, 111, 112, 113, 115, 173, 212, + 225 + + James I., i. 266, 268, 269, 274, 275, 301, 303, 307, 308, 309, + 313, 314, 317, 318, 328, 330, 333, 338, 342, 347, 365, 369, 374, + 378, 379, 380, 381, 382; ii. 10, 22, 24, 26, 90, 240, 305, 322, + 325, 331, 362, 394, 398, 413; iii. 26, 35, 40, 140, 171, 172, + 251, 267, 268, 269, 270, 282, 294, 327, 334, 335, 349 + + James II., ii. 352, 421; iii. 37, 43, 46, 48, 50, 52, 57, 59, 61, + 63, 66, 68, 70, 71, 74, 75, 76, 77, 78, 80, 83, 84, 86, 87, 94, + 96, 105, 112, 114, 115, 119, 125, 151, 157, 185, 193, 195, 202, + 244, 260, 270, 282 + + James III., iii. 269, 271 + + James IV., iii. 268, 270, 271 + + James V., King of Scots, i. 154; iii. 272, 276, 278, 279, 280 + + James VI., iii. 271, 283 + + James VII., iii. 288, 289 + + Jefferies, iii. 57, 143, 147 + + Jekyll, Sir Joseph, iii. 181 + + Jenkes, iii. 9, 10 + + Jermyn, ii. 116 + + Jersey, iii. 12 + + Jersey, Lord, iii. 130 + + Jesuits, i. 132 + + Jewel, i. 164, 166, 167 + + John, King, i. 15, 48; ii. 17, 18; iii. 89, 306, 307 + + Joseph, Emperor, iii. 189 + + Joyer, ii. 188, 191 + + Juliers, i. 310 + + _Jurisdiction of the Lords' House_, i. 51; iii. 23 + + Juxon, ii. 170 + + + Kaim's _Law Tracts_, iii. 272 + + Karn, Sir Edward, i. 106 + + Keeling, iii. 7 + + Kelly, iii. 221 + + Kennet, i. 384; ii. 8, 56, 341, 364; iii. 6, 215 + + Kent, iii. 237 + + Keppel, iii. 166 + + Kerry, iii. 310, 313, 323, 331, 349 + + Keyes, Lady Frances, i. 273 + + Kildare, iii. 307 + + Kildare, Earl of, iii. 313, 314, 316, 317 + + Kilkenny, iii. 307, 311, 312, 313, 315 + + King of Scotland, i. 130 + + King's Bench, i. 10; ii. 3, 5, 6; iii. 12 + + Knight, i. 385 + + Knollys, i. 173, 186, 188, 199, 246 + + Knox, i. 163, 178, 261; ii. 420; iii. 274, 275, 276, 292 + + + Lacy, iii. 304, 306 + + La Hogue, Battle of, iii. 111, 128 + + Laing, iii. 285, 287 + + Lambert, ii. 250, 252, 257, 260, 261, 272, 280, 281, 297, 299, + 300, 313 + + Lancashire, i. 12; ii. 183 + + Lancaster, House of, i. 13, 37, 231; ii. 89, 298; iii. 30, 315 + + Landen, iii. 119 + + Lanerk, ii. 196 + + Langdale, Sir Marmaduke, ii. 78 + + Languet, i. 259 + + Lansdowne, i. 219, 222 + + Latimer, i. 75, 193, 202, 332 + + Latin, i. 84, 90, 202 + + Laud, Bishop, i. 366; ii. 34, 35, 40, 42, 49, 51, 55, 58, 69, 75, + 104, 151, 152, 157; iii. 49, 281 + + Lauderdale, ii. 196, 341, 351, 360, 388; iii. 285, 286 + + Launceston, i. 139 + + League, The, i. 259 + + Lechmere, iii. 180, 181, 182 + + Ledwich, iii. 303 + + Lee, Captain, i. 217; iii. 167 + + Leeds, iii. 33 + + Leeds, Duke of, ii. 383; iii. 182 + + Leicester, Earl of, i. 119, 120, 128, 159, 160, 171, 173, 191, + 195, 218; ii. 128, 346 + + Leinster, iii. 300, 305, 306, 307, 313, 318, 334 + + Leitrim, iii. 333 + + Leland, iii. 313, 318, 319, 320, 322, 324, 325, 328, 329, 331, + 333, 337, 345, 346, 348, 349 + + Lennox, iii. 276 + + Leopold, Emperor, ii. 349 + + Leslie, iii. 157, 193 + + L'Estrange, Sir Roger, iii. 4 + + Lethington, Mary's secretary, i. 126, 129 + + _Letters of Robert Bailie_, ii. 94 + + Levitical Law, i. 68 + + Lichfield, i. 92, 98, 316 + + _Life of Pole_, i. 46 + + Limerick, iii. 299, 310, 313, 323, 349 + + Lincoln, Bishop of, ii. 32 + + Lincoln, Earl of, i. 30; ii. 138 + + Lingard, Dr., i. 35, 46, 61, 67, 72, 94, 99, 101, 102, 114, 156, + 217, 351, 376, 378, 384; ii. 50, 142 + + Lionel, Duke of Clarence, iii. 312 + + Littleton, iii. 249 + + Llandaff, i. 92 + + Locke, ii. 186, 320, 423; iii. 81, 220 + + Lockhart, iii. 200, 224 + + Lodge's _Illustrations of British History_, i. 28, 54, 127, 137, + 218, 319 + + Lollards, The, i. 58 + + London, i. 13, 23, 25, 28, 44, 67, 68, 90, 92, 132, 169, 172, + 226, 227, 322, 346; ii. 11, 22, 23, 24, 34, 78, 83, 93, 105, 130, + 143, 183, 184, 189, 259, 272, 273, 289, 345, 408, 409, 411, 412, + 413; iii. 3, 5, 8, 9, 33, 67, 76, 80, 141, 285, 289, 317, 346 + + London, Bishop of, i. 173, 224; ii. 62; iii. 57, 73 + + Londonderry, iii. 128 + + Long, ii. 2; iii. 40 + + Longford, iii. 333 + + Lords, The, i. 13, 17, 70, 112, 198, 257, 280, 304, 306, 307, + 316, 332, 333, 335, 351, 353, 384; ii. 93, 96, 102, 106, 108, + 126, 128, 130, 135, 141, 146, 147, 152, 156, 165, 197, 198, 213, + 215, 216, 239, 262, 263, 270, 273, 275, 288, 297, 300, 304, 309, + 311, 327, 353, 375, 379, 380, 382, 383, 388, 389, 391, 395, 396, + 405, 407, 423; iii. 10, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, + 24, 25, 26, 27, 28, 29, 31, 84, 86, 87, 92, 99, 117, 128, 132, + 134, 144, 152, 154, 159, 168, 177, 182, 183, 209, 210, 217, 218, + 220, 237, 240, 245, 246, 247, 270, 319, 346, 356 + + Lords' Committee, Report on, i. 9 + + Louis XIV., ii. 335, 336, 337, 342, 343, 349, 350, 351, 361, 365, + 367, 370, 385, 418, 424; iii. 71, 77, 112, 122, 172, 185, 192 + + Louis XV., iii. 159 + + Loyola, Ignatius, i. 158 + + Luculli, iii. 39 + + Ludlow, ii. 204, 206, 232, 236, 237, 242, 247, 335 + + Lumley, Lord, iii. 73 + + Lundy, Colonel, iii. 128 + + Lusheburg, iii. 134 + + Luther, Martin, i. 58, 60, 68, 81, 87, 88; ii. 57 + + Lutherans, i. 68, 80, 81, 88, 93, 97, 99, 107, 163, 367, 372; ii. + 392 + + + Macdonalds, iii. 293 + + Machiavel government, i. 135, 205 + + Mackenzie, Sir George, ii. 423 + + Mackworth, Sir Humphrey, iii. 164 + + MacMurrough, iii. 308 + + Macpherson's _Extracts_, ii. 332, 346, 347, 353; iii. 108, 109, + 113, 194, 195 + + Madox, i. 54, 177, 196; iii. 38 + + Madrid, i. 300, 343, 379; ii. 78, 189 + + Magdalen College, iii. 68, 75 + + Magna Charta, i. 54, 356, 358, 360; ii. 17, 23, 31, 406, 422; + iii. 11, 24, 87, 326 + + Maidstone, iii. 143 + + Malvern, i. 75 + + Manchester, Earl of, ii. 275, 315 + + Mansfield, iii. 221 + + Margaret Queen of Scots, i. 118, 119, 269 + + Marlborough, i. 318; iii. 116, 118, 184, 187, 189, 194, 195 + + Marlborough, Duchess of, iii. 207 + + Marshal Berwick, iii. 195 + + Marshalsea, i. 114, 220 + + Marston Moor, ii. 152 + + Martin Mar-prelate, i. 193, 194, 195 + + Martyr, Peter, i. 89, 100, 164 + + Mary, Princess, ii. 363, 367; iii. 59 + + Mary, Queen, iii. 90, 95, 104, 173, 290, 334 + + Mary IV. of France, i. 129 + + Mary Queen of Scots, i. 118, 122, 124, 125, 126, 127, 128, 133, + 147, 150, 151, 152, 154, 184, 225, 233, 238; iii. 273 + + Mary Tudor, i. 31, 34, 37, 43, 44, 46, 49, 56, 91, 93, 100, 101, + 102, 103, 104, 106, 117, 118, 121, 132, 147, 150, 163, 166, 249, + 253, 254, 256; ii. 34, 119, 120, 122; iii. 27, 35, 81 + + Masham, Lady, iii. 198 + + Massachusetts Bay, ii. 51 + + Matthews, i. 82 + + Maurice, ii. 154, 162 + + Maximilian, i. 115, 131 + + Mayart, Sergeant, iii. 355 + + Maynard, ii. 95, 248 + + Mead, iii. 8 + + Meath, iii. 301, 305, 306, 314, 333 + + Mede's letters, i. 353 + + Medici, The, i. 63 + + Mediterranean, i. 7; iii. 121, 128 + + Melancthon, i. 97 + + Melville, Andrew, iii. 275, 276, 277, 292 + + _Memoirs of Lord Burghley_, i. 43 + + Mesnager, iii. 206 + + Middlesex, iii. 235 + + Middlesex, Earl of, i. 345 + + Middleton, iii. 286 + + Milan, iii. 192 + + Millenary Petition, i. 278 + + Milton, iii. 3, 176 + + Minorca, iii. 227 + + Molesworth, iii. 81 + + Molyneux, iii. 355 + + Mompesson, Sir Giles, i. 331, 332, 335, 337 + + Monk, Gen., ii. 254, 257, 258, 259, 260, 261, 263, 264, 266, 268, + 269, 272, 276, 277, 279, 288 + + Monmouth, Duke of, ii. 393, 400, 402, 425; iii. 32, 34, 36, 52, + 60 + + Montagu, iii. 243 + + Montague, Chief Justice, i. 98, 112, 155; ii. 56, 62, 63, 64, 65, + 254, 373; iii. 120, 132 + + Montaigne, i. 205 + + Monteagle, Lord, i. 272 + + Montesquieu, i. 263; iii. 220 + + Montrose, ii. 161; iii. 284 + + Mordaunt, Lord, ii. 340 + + More, Sir Thomas, i. 18, 21, 26, 31, 34, 60, 66, 69; ii. 185 + + Morice, attorney of the court, i. 199 + + Mortimer, iii. 133 + + Mortimer, Roger, ii. 406 + + Morton, Archbishop, i. 18, 19, 71; ii. 63; iii. 276 + + Motteville, Madame de, ii. 82, 115 + + Mountnorris, ii. 40 + + Munster, iii. 300, 306, 307, 323, 331, 334 + + Murden's _State Papers_, i. 122, 128, 134, 152, 153, 168, 217, + 229, 307 + + Murray, i. 129; ii. 171, 195; iii. 242, 248 + + Musgrave, Sir Christopher, iii. 167 + + + Nag's Head, i. 114 + + Nalson, ii. 82, 105, 113, 130 + + Namptwich, ii. 258 + + Nantes, Edict of, iii. 350 + + Naples, iii. 130, 186, 192 + + Naseby, Battle of, ii. 161, 166 + + Neal, i. 188, 191, 194, 201; ii. 52, 103, 104, 106, 150, 151, + 182, 183, 184, 289, 312 + + Neille, Bishop, i. 366 + + Netherlands, iii. 77, 185 + + Neville, i. 314, 315 + + Newark, iii. 36 + + Newcastle, ii. 186, 196 + + Newcastle, Earl of, ii. 140, 180, 192 + + Newgate, iii. 241 + + Newport, Treaty of, ii. 198, 200, 270, 271, 274, 286 + + New Testament, i. 81 + + Neyle, i. 316 + + Nice, i. 63 + + Nimeguen, ii. 361 + + Noailles, i. 46, 47, 48, 100, 101, 103 + + Norfolk, i. 48, 100, 131, 215; ii. 152 + + Norfolk, Duke of, i. 23, 31, 34, 49, 51, 56, 83, 91, 128, 129, + 130, 184, 190 + + North, Chief Justice, ii. 401 + + Northampton, i. 195 + + Northampton, Earl of, i. 293, 326; ii. 76 + + Northey, iii. 57 + + Northumberland, Duke of, i. 42, 43, 128, 129, 130, 147, 376; ii. + 13, 31, 83, 132, 136, 138, 165, 172, 198, 208, 214, 267, 346 + + Norway, iii. 300, 302 + + Norwich, Bishop of, i. 173, 186, 211 + + Nottingham, Earl of, ii. 388, 407; iii. 62, 72, 84, 98, 107, 173, + 184, 218 + + Nottinghamshire, iii. 182 + + Nowell, i. 166; 256 + + Noy, i. 355; ii. 10, 14, 18 + + + O'Brien, iii. 308, 313 + + O'Connor, iii. 308, 315 + + [OE]colampadius, i. 88 + + Ogilvy, iii. 284 + + O'Malachlin, iii. 308 + + O'Neal, iii. 308, 315 + + O'Neil, Slanes, iii. 318, 324, 325, 330 + + Onslow, i. 260 + + O'Quigley, iii. 143 + + Orford, Lord, iii. 165, 184, 193, 196, 198, 202, 205, 207 + + Orkney, Countess of, iii. 126 + + Orleans, Duchess of, ii. 343, 348, 350; iii. 160 + + Ormond, Marquis of, ii. 175, 227, 253; iii. 196, 313, 323, 348, + 351 + + Orrery, Duke of, ii. 353 + + Oudenarde, iii. 186 + + Owen, ii. 353 + + Oxford, i. 67, 171, 174, 385; ii. 141, 144, 145, 154, 155, 163, + 175, 319, 375, 383, 398, 409, 423; iii. 19, 69, 154, 220 + + Oxford, Earl of, i. 19, 342; iii. 206 + + + Pagets, The, i. 49, 91, 92, 148 + + Palatinate, i. 337, 338, 339, 379; ii. 12, 46, 65, 325; iii. 160 + + Pangani, ii. 53, 54, 61, 65 + + Papists, iii. 350 + + _Paradise Lost_, iii. 4 + + Paris, i. 134 + + Parker, Archbishop, i. 106, 113, 122, 134, 135, 164, 165, 166, + 170, 171, 172, 173, 189 + + Parker, Bishop of Oxford, iii. 68 + + Parkhurst, i. 173, 186 + + Parliament, i. 177, 246, 302, 330, 344, 386; ii. 80, 200, 250, + 284, 373; iii. 45, 248 + + _Parliamentary History_, ii. 182, 183, 192, 213, 248, 294, 335, + 340, 342, 359; iii. 10, 13, 16, 21, 25, 46, 83, 85, 91, 92, 101, + 102, 108, 116, 126, 128, 129, 131, 144, 145, 153, 154, 167, 168, + 179, 184, 185, 205, 206, 208, 210, 218, 223, 228, 234 + + Parma, Duke of, i. 267 + + Parry, Dr., i. 255 + + Parsons, Sir William, iii. 341 + + Paul IV., i. 106, 110 + + Pavia, Battle of, i. 20, 24 + + Pearce, Bishop of Rochester, i. 73 + + Peers, House of, ii. 213, 215, 304; iii. 3, 14, 20, 23, 27, 206 + + Pelagians, i. 372 + + Pelham, iii. 257, 258, 261 + + Pemberton, iii. 147, 150, 246 + + Pembroke, Earl of, i. 101, 128, 215 + + Penn, iii. 8 + + Pennington, ii. 146 + + Penry, i. 217 + + Percy, Lord, i. 35; ii. 116 + + Perrott, Sir John, iii. 324 + + Peterborough, See of, i. 210; ii. 382 + + Petition of Right, i. 360, 361, 362, 363, 364; ii. 2; iii. 336 + + Petre, Father, iii. 58, 69, 78 + + Philip of Anjou, iii. 186, 187, 188, 191 + + Philip II., i. 30, 48, 100, 102, 138, 155, 264; ii. 119, 121, 342 + + Philips, Sir Robert, i. 342 + + Phocion, iii. 32 + + Picardy, iii. 191 + + Pickering, Mr., i. 241, 242 + + Pierrepont, ii. 165, 245, 258, 266, 267, 346 + + Pilkington, i. 173 + + Pitt, Mr., iii. 257, 259 + + Pius IV., i. 110, 111 + + Pius V., i. 129, 131, 141 + + Plantagenet, House of, i. 9, 10, 264; ii. 91; iii. 30, 160, 314 + + Plowden's _Commentaries_, i. 55 + + Plummer's Hall, i. 173 + + Plunket, ii. 410 + + Pole, Reginald, i. 32, 102, 111 + + Pollexfen, iii. 143 + + Pomfret, iii. 35 + + Porter, iii. 116 + + Portland, Earl of, iii. 126, 131, 165 + + Portsmouth, ii. 120, 348 + + Portsmouth, Duchess of, ii. 395 + + Powell, iii. 247 + + Powis, iii. 247 + + Powletts, The, i. 49 + + Poyning's Law, iii. 315, 316, 325, 336, 354 + + Preston, Lord, iii. 143 + + Pretender, The, iii. 223, 244 + + Prince of Orange, ii. 348, 361, 363, 371, 372, 394, 397; iii. 61, + 62, 63, 72, 73, 75, 77, 78, 83, 87, 88, 90, 91, 183, 289 + + Princess Anne, iii. 74 + + Princess of Orange, ii. 394, 398; iii. 62, 85, 87, 88, 91 + + Protestants, i. 81, 85, 90, 91, 93 + + Prynne, i. 54; ii. 33, 34, 43, 44 + + Pulteney, Mr., iii. 228 + + Puritans, i. 180 + + Pym, ii. 80, 93, 109, 116, 133, 137, 141; iii. 1, 28 + + Pyrenees, iii. 77, 185 + + + Queen's County, iii. 307, 318, 333 + + + Raleigh, Sir Walter, i. 244, 258, 263, 309, 310, 325, 328, 329; + iii. 331 + + Ralph, iii. 7, 67, 69, 73, 98, 108, 113, 155 + + Reading, i. 32, 69 + + Reed, Richard, i. 28 + + Reformation, The, i. 57, 68, 70, 72, 77, 82, 83, 88, 90, 93, 97, + 105, 107, 192, 197, 384; ii. 56, 57, 58, 91, 103 + + Restoration, ii. 51, 347 + + Revolution, iii. 74, 90 + + Richard I., iii. 41 + + Richard II., i. 15, 44, 48, 56, 65, 231, 235, 293, 320, 332; ii. + 17, 26, 246, 247, 248, 249, 250, 253, 325, 406; iii. 25, 313 + + Richard III., i. 8, 16, 17, 18, 25, 228, 314, 317; ii. 298 + + Richardson, i. 361 + + Richardson, Mr. Sergeant, ii. 26 + + Riches, The, i. 49 + + Richlieu, i. 382; ii. 13; iii. 340 + + Richmond, Duke of, ii. 129, 161, 331 + + Ridley, i. 93, 95, 96, 162, 372 + + Robert I., iii. 267 + + Robertson, iii. 273 + + Rochelle, i. 386 + + Rochester, Bishop of, iii. 221 + + Rochester, Earl of, iii. 54, 58, 59, 64, 184 + + Rochester, See of, iii. 215 + + Rochford, Lady, i. 36 + + Romanists, i. 88, 115, 134, 180, 359; ii. 392; iii. 272, 275, + 349, 352, 353 + + Roman See, The, i. 58, 65, 79, 97, 105, 166, 178, 320, 380; ii. + 350; iii. 46, 64, 66, 86 + + Roman Senate, iii. 291 + + Rome, i. 61, 62, 63, 64, 65, 66, 67, 68, 70, 77, 80, 86, 87, 88, + 106, 108, 110, 111, 132, 138, 139, 142, 155, 156, 159, 177, 185, + 217, 372, 374, 377, 385; ii. 51, 53, 55, 59, 60, 62, 63, 64, 65, + 78, 107, 227, 257, 363; iii. 4, 39, 49, 51, 58, 61, 68, 69, 73, + 92, 156, 158, 277, 303, 309, 324, 344 + + Romish Church, i. 82, 87, 89, 116, 135, 167, 174, 366, 374; ii. + 315, 317, 332, 347, 353, 358, 384, 387, 420; iii. 47, 50, 55, 62, + 281, 327, 337, 350 + + Roper's _Life of More_, i. 22 + + Ross, Earls of, iii. 272, 283 + + Rouvigny, ii. 343, 365 + + Rubens, Peter Paul, ii. 12 + + Rudyard, ii. 80, 138 + + Rump, The, ii. 205, 252, 260 + + Runnymede, i. 219; iii. 306 + + Rupert, Prince, ii. 146, 153, 154, 162 + + Rushworth, i. 353, 354, 355, 359, 364, 381, 382, 384; ii. 6, 14, + 15, 21, 24, 33, 39, 50, 59, 82, 83, 95, 105, 155, 158, 160, 182 + + Russell, Lord, ii. 368, 369, 396, 400, 413, 414, 415, 419; iii. + 73, 110, 117, 121, 128, 142, 143 + + Russells, The, i. 49 + + Russia, iii. 221 + + Rutland, iii. 34 + + Rymer, i. 13, 158, 222, 227, 228, 313, 329, 342; ii. 2, 10, 22, + 23, 25, 39, 83, 121 + + Ryswick, iii. 97, 114, 118, 122, 123, 158, 193, 227 + + Sacheverell, iii. 141, 180, 183, 185, 194 + + St. Albans, i. 76 + + St. Germain, iii. 111, 113, 118, 122, 158, 194, 195, 196 + + St. John, ii. 109, 116, 137, 245, 258; iii. 184 + + Salisbury, Countess of, i. 32, 36 + + Salisbury, Earl of, i. 292, 293, 303, 306, 308, 310; ii. 9, 382 + + Salop, i. 305; ii. 89, 152 + + Sampson, i. 171 + + Sancroft, Archbishop, ii. 421; iii. 69, 153 + + Sandys, i. 164, 165, 166, 173, 183, 186, 337, 339, 345, 372 + + Saville, Sir John, ii. 37, 83, 181 + + Savoy, iii. 189 + + Savoy, Duchess of, iii. 160 + + Sawyer, Sir Robert, iii. 99 + + Saxon, iii. 266 + + Say, Lord, ii. 83, 109, 198, 267 + + Scandinavian, iii. 299 + + Scarborough, i. 45 + + Scobell, ii. 182 + + Scotland, i. 20, 38, 126, 287; ii. 76, 78, 79, 83, 85, 120, 121, + 126, 127, 148, 163, 227, 277; iii. 12, 36, 162, 198, 204, 222, + 225, 228, 266, 269, 270, 271, 272, 273, 276, 280, 281, 285, 286, + 288, 290, 291, 292, 294, 295, 296, 304, 318, 332, 339, 341 + + Scots, ii. 168, 173, 178, 180, 185, 196, 197, 203, 290; iii. + 289, 295, 297, 332 + + Scott, ii. 225 + + Scottish Highlanders, iii. 299, 322 + + Scriptures, i. 82 + + Scroggs, Chief Justice, ii. 381, 388, 406; iii. 4, 5, 143 + + Seldon, i. 325, 355; ii. 2, 138, 181; iii. 1, 249 + + Servitus, i. 94 + + Sextus V., i. 129 + + Seymour, Jane, i. 37 + + Seymour, Lord, i. 34, 40, 41, 42; ii. 78 + + Shaftesbury, ii. 351, 354, 356, 392, 393, 400, 402, 407, 408, + 414 + + Sharp, iii. 287, 288 + + Sheffield, Sir Robert, i. 54 + + Sheldon, Archbishop, ii. 319, 320, 354 + + Shelley, Sir Richard, i. 135 + + Sherlock, ii. 420, 421 + + Shirley, Sir T., i. 281, 282, 286; iii. 22, 23, 24 + + Shrewsburies, The, i. 49 + + Shrewsbury, Earl of, iii. 73, 110, 111, 131, 156, 182 + + Sicily, iii. 130, 186 + + Sidney, iii. 142, 143 + + Sidney, Algernon, ii. 335, 370, 371, 396, 413, 416, 417, 418 + + Sidney, Sir Henry, iii. 323, 325, 326 + + Sidney, Sir Philip, i. 202, 217 + + _Sidney Papers_, ii. 14, 79, 140; iii. 326 + + Simnel, Lambert, i. 30 + + Simon de Bereford, Sir, ii. 406 + + Skinner, iii. 19, 20, 21, 22, 24 + + Slingsby, ii. 232 + + Smith, Sir Thomas, i. 49, 53, 55, 130, 263; iii. 6, 330 + + Somerset, Duke of, i. 36, 41, 42, 46, 83, 91, 92, 93, 273, 327 + + Somerset House, i. 92; ii. 53; iii. 7 + + _Somers Tracts_, i. 144, 146, 149, 153, 165, 192, 305, 327, 329, + 330, 367; ii. 49, 75, 140, 149, 175, 205, 290, 321, 383, 412, + 423; iii. 95, 100, 107, 113, 114, 131, 148, 165, 179, 184, 186, + 238 + + Somerville, iii. 106, 201 + + Sophia, Princess, iii. 159, 160, 161, 179, 184, 295 + + Southampton, Earl of, i. 342; ii. 9, 132, 161, 281, 303, 319 + + Southey's _Book of the Church_, i. 89 + + Spain, i. 102, 103, 106, 137, 226, 227, 267, 291, 308, 309, 310, + 329, 330, 343, 374, 381, 382; ii. 11, 46, 60, 74, 77, 79, 227, + 312, 338, 348, 361; iii. 77, 121, 123, 130, 185, 187, 188, 189, + 191, 192, 198, 206, 221, 299, 324, 326, 328, 340, 351 + + Spanish Netherlands, iii. 121, 130 + + _Specimens of Errors in Burnet_, i. 69 + + Speed's _Catalogue of Religious Houses_, i. 76 + + Spelman, i. 54 + + Spenser, Edmund, iii. 331 + + Stafford, Earl of, i. 30, 45, 98; ii. 381, 410 + + Standish, Dr., i. 59 + + Stanhope, iii. 180, 181, 189 + + Stanley, Lord, i. 56 + + Star Chamber, The, i. 52, 55; ii. 26, 30 + + States General of France, i. 25 + + State Trials, i. 156, 194, 217, 301, 305, 318, 319, 324, 325, + 330, 358, 359, 387; ii. 5, 7, 15, 16, 34, 229, 335, 345, 374, + 387, 388, 407, 410, 415, 416, 418; iii. 4, 5, 8, 10, 21, 57, 70, + 74, 141, 143, 144, 146, 149, 181, 182, 221, 246 + + Statute of Fines, i. 16 + + Steele, Sir Richard, iii. 235 + + Steenkirk, iii. 119 + + Stillingfleet's _Irenicum_, ii. 292, 310 + + Stoke, Battle of, i. 30 + + Stone, John, i. 253 + + Stoughton, Lord, i. 36 + + Strafford's _Letters_, ii. 9, 10, 13, 21, 25, 34, 36, 37, 39, + 41, 43, 45, 48, 49, 53, 76, 78, 89, 93, 94, 95, 96, 97, 99, 100, + 101, 124, 151; iii. 63, 76, 336, 337, 339, 340, 341 + + Strickland, i. 135, 180 + + Strode, ii. 2, 4 + + Strongbow, iii. 304, 305 + + Strype, i. 41, 47, 51, 64, 66, 68, 70, 71, 77, 80, 81, 82, 83, + 84, 85, 88, 89, 90, 91, 92, 93, 94, 96, 97, 100, 101, 103, 104, + 107, 108, 110, 111, 113, 114, 115, 116, 117, 120, 123, 124, 125, + 130, 131, 133, 135, 137, 139, 140, 141, 142, 144, 147, 154, 155, + 156, 163, 164, 165, 169, 170, 171, 172, 173, 174, 175, 176, 182, + 183, 184, 186, 187, 188, 189, 190, 191, 197, 198, 199, 200, 201, + 209, 210, 218, 222, 223, 224, 225, 226, 227, 228, 229, 230, 233, + 247, 260, 301, 369, 372 + + Stuart, Arabella, i. 267, 325 + + Stuarts, i. 354, 365; ii. 88, 218, 228, 235, 241, 269, 272, 323, + 409, 418, 420, 424; iii. 5, 30, 75, 76, 77, 81, 90, 94, 103, 119, + 148, 157, 161, 167, 171, 175, 191, 193, 198, 204, 223, 224, 225, + 255, 286, 287, 290, 291, 293, 352 + + Suffolk, i. 25, 100, 118, 122, 123, 124, 127, 130; ii. 152 + + Suffolk, Duchess of, i. 37, 118, 269, 271, 273 + + Suffolk, Earl of, i. 30, 31, 118, 274, 324, 332; ii. 31 + + Sunderland, iii. 33, 63, 184 + + Sunderland, Lord, iii. 209, 211 + + Supremacy, Act of, i. 162, 189 + + Surrey, Earl of, i. 34 + + Sussex, Earl of, i. 48, 114, 128; iii. 320 + + Sweden, iii. 221 + + Sweden, King of, iii. 212 + + Swift, Dean, iii. 261 + + Swiss reformers, i. 81, 89, 171 + + Switzerland, i. 85, 100, 163; iii. 189 + + Talbot, Lord Chancellor, iii. 253 + + Taltarum, Case of, i. 16 + + Tangier, iii. 12 + + Tanner's _Notitia Monastica_, i. 75 + + Taylor, ii. 186 + + Temple, Sir John, iii. 342 + + Temple, Sir William, ii. 399; iii. 164 + + Tenison, Archbishop, iii. 297 + + Test Act, i. 160 + + Thin, i. 232 + + Thornton, i. 126 + + Thoulouse, iii. 159 + + Thurloe, ii. 230, 233, 242, 245, 246, 258 + + Tilbury, i. 155; ii. 120 + + Tindal, i. 81; iii. 216 + + Tipperary, iii. 313 + + Topham, iii. 246 + + Torcy, iii. 193 + + Tory, ii. 398; iii. 77 + + Tournay, iii. 193, 205 + + Tower, The, i. 29, 56, 110, 123, 142, 239, 253, 282, 327, 331, + 338, 342, 350, 351; ii. 2, 3, 10, 33, 113, 120, 128, 151, 231, + 261, 272, 382; iii. 23, 205, 234, 244, 245, 246, 317, 326 + + Townsend, Heywood, i. 233 + + Townshend, Lord, iii. 190, 203 + + Treby, iii. 143 + + Trent, i. 110, 111, 181 + + _True Law of Free Monarchies_, i. 278 + + Tudor, House of, i. 9, 13, 15, 17, 30, 40, 42, 48, 142, 209, + 225, 231, 250, 264, 332, 347, 354; ii. 26, 79, 88, 89, 91, 92, + 119, 234, 420; iii. 5, 30, 82, 160 + + Tunstal, Bishop of Durham, i. 46 + + Turner's _History of England_, i. 20 + + Tutchen, iii. 149 + + Tyrconnel, Earl of, iii. 331, 348 + + Tyrone, Earl of, iii. 318, 322, 324, 325, 327, 331, 332, 340 + + Udal, i. 217 + + Ulster, iii. 300, 305, 313, 324, 325, 329, 331, 332, 335, 339, + 342, 344 + + Upper Palatinate, i. 330 + + Usher, Bishop, ii. 292, 294, 306 + + Utrecht, iii. 188, 192 + + Uxbridge, ii. 156, 157, 159, 161, 165, 173, 185 + + Vallinger, ii. 30 + + Valois, House of, i. 217, 259 + + Van Citers, iii. 62 + + Vane, Sir Henry, ii. 13, 95, 252, 256, 280, 281, 297, 298, 299; + iii. 86 + + Vatican, ii. 61 + + Vaughan, Chief Justice, iii. 8, 9 + + Venice, i. 312; ii. 200 + + Venner, ii. 288 + + Verden, iii. 212 + + _View of the Middle Ages_, i. 50; iii. 25 + + Virgin, i. 85, 164 + + Vowel, ii. 232 + + Wake, iii. 214 + + Waldgrave, Sir Edward, i. 110 + + Wales, i. 305; ii. 89, 152; iii. 12, 34, 209, 301 + + Wales, Prince of, i. 29, 345, 380; ii. 172, 200, 204; iii. 73, + 74, 83, 86, 145, 160, 173, 185, 225 + + Walker, ii. 151 + + Waller, ii. 80, 138, 143, 267 + + Wallingford House, ii. 249 + + Walpole, H., i. 84 + + Walpole, Sir Robert, iii. 42, 181, 203, 208, 219, 223, 225, 227, + 231, 232, 233, 255, 256, 257, 258, 261, 263 + + Walsingham, i. 130, 131, 133, 147, 149, 152, 173, 183, 184, 191, + 210, 212, 213 + + Warbeck, Perkin, i. 29 + + Warburton, ii. 159; iii. 220 + + Ware, Sir James, iii. 303 + + Warham, Archbishop, i. 24, 66 + + Warwick, Earl of, i. 29, 93, 173, 195, 213, 224 + + Waterford, iii. 313, 323, 328 + + Wenlock, iii. 37 + + Wentworth, Paul, i. 234, 238, 239, 242, 243; ii. 31, 37, 38, 39, + 46, 79, 232 + + Westbury, iii. 40 + + Westminster, i. 10, 13, 76, 92, 270, 322, 336, 353; ii. 33, 87, + 135, 146, 149, 154, 156; iii. 5, 27, 34, 242, 329, 355 + + Westminster Hall, iii. 149, 213, 247 + + Westmoreland, Earl of, i. 128, 129, 130; ii. 9 + + Weston, ii. 41, 60 + + Wexford, iii. 307 + + Whalley, Abbey of, i. 79 + + Wharton, Lord, i. 98; iii. 184 + + Whig, ii. 132, 398; iii. 180 + + White, iii. 37 + + Whitehall, iii. 125 + + Whitelock, i. 324; ii. 8, 33, 106, 123, 136, 138, 142, 158, 161, + 165, 181, 215, 217, 218, 222, 226, 233, 245, 247, 258, 260, 261 + + Whitgift, i. 137, 156, 187, 188, 190, 194, 195, 199, 209, 226, + 278, 369 + + Wicliffe, i. 58 + + Wildman, Major, ii. 229 + + Wilford, Sir Thomas, i. 226 + + Wilkins, ii. 120, 341, 353 + + William III., iii. 16, 77, 79, 81, 88, 90, 94, 95, 96, 97, 98, + 100, 104, 105, 106, 107, 111, 112, 114, 119, 120, 121, 126, 129, + 131, 133, 141, 142, 148, 156, 159, 160, 161, 164, 165, 166, 167, + 168, 170, 171, 173, 175, 178, 179, 203, 212, 215, 218, 226, 236, + 243, 255, 261, 263, 289, 290, 291, 293, 334, 350 + + William the Conqueror, iii. 255 + + William the Lion, iii. 266 + + Williams, Bishop, i. 381; ii. 104 + + Willis, i. 71; ii. 255 + + Willoughby, Lord, ii. 140, 253 + + Wilmot, ii. 162; iii. 13 + + Wilson, i. 315, 370 + + Winchester, i. 92, 114, 120 + + Windebank, ii. 60, 61, 62, 65 + + Windsor, ii. 196 + + Winwood, i. 303, 309, 310, 314, 325, 326, 330, 372, 374 + + Wisbeach Gaol, i. 113 + + Wolsey, Cardinal, i. 21, 22, 23, 25, 26, 31, 49, 53, 60, 62, 64, + 65, 66, 70 + + Wood, i. 71 + + Worcester, ii. 152, 226 + + Worcester, Bishop of, i. 137, 186, 305 + + Wren, ii. 104 + + Wright, Mr. Justice, iii. 248 + + Wyatt, i. 105, 225 + + Wyndham, Sir Hugh, iii. 7 + + Yarmouth, i. 48 + + Yelverton, i. 314 + + York, iii. 34, 137, 182, 213 + + York, Duchess of, iii. 51 + + York, Duke of, ii. 204, 255, 288, 311, 313, 329, 332, 333, 346, + 347, 351, 352, 353, 358, 362, 363, 367, 368, 384, 388, 389, 392, + 394, 397, 399, 400, 402, 405, 414; iii. 51, 286, 287, 315 + + York, House of, i. 13, 29, 37, 128, 173; ii. 84, 94, 103, 274, + 298; iii. 30 + + Zuingle, i. 58, 88, 89, 92, 107, 162 + + Zurich, i. 166, 372 + + +THE TEMPLE PRESS, PRINTERS, LETCHWORTH + + + + + + +End of the Project Gutenberg EBook of Constitutional History of England, +volume 3 of 3, by Henry Hallam + +*** END OF THIS PROJECT GUTENBERG EBOOK CONST. 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