Home
  By Author [ A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z |  Other Symbols ]
  By Title [ A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z |  Other Symbols ]
  By Language
all Classics books content using ISYS

Download this book: [ ASCII | HTML | PDF ]

Look for this book on Amazon


We have new books nearly every day.
If you would like a news letter once a week or once a month
fill out this form and we will give you a summary of the books for that week or month by email.

Title: Constitutional History of England, volume 3 of 3 - Henry VII to George II
Author: Hallam, Henry, 1777-1859
Language: English
As this book started as an ASCII text book there are no pictures available.
Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

*** Start of this Doctrine Publishing Corporation Digital Book "Constitutional History of England, volume 3 of 3 - Henry VII to George II" ***

This book is indexed by ISYS Web Indexing system to allow the reader find any word or number within the document.



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 æra
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 £100; and even the judge denying a habeas
corpus, when required according to this act, is made liable to a
penalty of £500 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 £5000 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
£5000 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 £500. 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 æra, 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 Publicolæ.

[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 sæpe_. "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 £700,000, 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 £700,000, 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 æra
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 £500
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, _à Deo
rex, à 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 manœuvre 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, à 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 æra 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 passé avant hier une chose de grande conséquence dans la
chambre basse: il fut proposé le matin que la chambre se mettoit en
comité l'après diner pour considérer la harangue du roy sur l'affaire
de la religion, et savoir ce qui devoit être entendu par le terme _de
religion protestante_. La résolution fut prise unanimement, et sans
contradiction, de faire une adresse au roy pour le prier de faire une
proclamation pour l'exécution des loix contre tous les nonconformistes
généralement, c'est-à-dire, contre tous ceux qui ne sont pas
ouvertement de l'église Anglicane; cela enferme les presbitériens et
tous les sectaires, aussi bien que les catholiques Romains. La malice
de cette résolution fut aussitôt reconnu du roy d'Angleterre, et de
ses ministres; les principaux de la chambre basse furent mandés, et
ceux que sa majesté Britannique croit être dans ses intérêts; il leur
fit une réprimande sévère de s'être laissés séduire et entraîner à une
résolution si dangereuse et si peu admissible. Il leur déclara que, si
l'on persistoit à lui faire une pareille adresse, il répondroit à la
chambre basse en termes si décisifs et si fermes qu'on ne retourneroit
pas à lui faire une pareille adresse. La manière dont sa majesté
Britannique s'explique produisit son effet hier matin; et la chambre
basse rejeta tout d'une voix ce que avoit été résolu en comité 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 établir la religion catholique; but these perhaps might be
explained by a far greater number of passages, where he says only
établir 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 répondit à ce que je venois de dire, que je
connoissois le fond de ses intentions pour l'établissement de la
religion catholique; qu'il n'esperoit en venir à 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 égalité fâchoit beaucoup de gens, mais qu'il n'avoit pas
laissé passer une occasion si importante sans s'en prévaloir; qu'il
feroit de même à l'égard des choses practicables, et que je voyois
plus clair sur cela dans ses desseins que ses propres ministres, s'en
étant 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 répondre que
tout son but étoit d'établir la religion catholique; qu'il ne perdroit
aucune occasion de la faire ... que peu à peu il va à son but, et que
ce qu'il fait presentement emporte nécessairement l'exercice libre de
la religion catholique, qui se trouvera établi avant qu'un acte de
parlement l'autorise; que je connoissois assez l'Angleterre pour
savoir que la possibilité 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 défie
ceux qui les voyent de près de ne pas connoître que le roy mon maître
n'a rien dans le cœur si avant que l'envie d'établir la religion
catholique; qu'il ne peut même, selon le bon sens et la droite raison,
avoir d'autre but; que sans cela il ne sera jamais en sûreté, et sera
toujours exposé au zèle indiscret de ceux qui échaufferont les peuples
contre la catholicité, tant qu'elle ne sera pas _plus_ pleinement
établie; il y a une autre chose certaine, c'est que ce plan là ne peut
réussir que par un concert et une liaison étroite avec le roi votre
maître; c'est un projet qui ne peut convenir qu'à lui, ni réussir 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 état de l'empêcher si on
veut se conduire en France comme il est nécessaire, c'est-à-dire
ménager l'amitié du roy d'Angleterre, et le contenir dans son projet.
Je vois clairement l'appréhension 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 connoître que le roi votre maître veut aider de bonne foi
le roi d'Angleterre à établir 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 Révol._ 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 opprimés 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 préambule il y a des mots
insérés qui semblent favoriser la religion catholique; cela seul a
retardé la rehabilitation du Comte de Stafford dont tous sont d'accord
à l'égard 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 à la
main; c'est un état bien différent de l'oppression où ils étoient, et
dont les protestans zélés recoivent une grande mortification; ils
voyent bien que le roy d'Angleterre fera le reste quand il le pourra.
La levée des troupes, qui seront bientot complettes, fait juger que le
roy d'Angleterre veut être en état de se faire obéir, et de n'être pas
gêné par les loix qui se trouveront contraires à ce qu'il veut
établir." Barillon in Fox's Appendix, 111. "Il me paroit (he says,
June 25), que le roy d'Angleterre a été fort aisé d'avoir une prétexte
de lever des troupes, et qu'il croit que l'entreprise de M. le duc de
Monmouth ne servira qu'à le rendre plus maître de sons pays." And on
July 30: "le projet du roy d'Angleterre est d'abolir entièrement les
milices, dont il a reconnu l'inutilité et le danger en cette dernière
occasion; et de faire, s'il est possible, que le parlement établisse
le fond destiné pour les milices à l'entretien des troupes réglées.
Tout cela change entièrement l'état de ce pays ici, et met les Anglois
dans une condition bien différente de celle où ils ont été jusques à
present. Ils le connoissent, et voyent bien qu'un roy de différente
religion que celle du pays, et qui se trouve armé, ne renoncera pas
aisément aux avantages que lui donne la défaite 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
même le parlement ne lui donneroit pour les entretenir. Il connoit
bien que le parlement verra mal volontiers cet établissement; mais il
veut être assuré du dedans de son pays, et il croit ne le pouvoir être
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 fierté et de colère sur le
visage, qui faisoit assez connôitre 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 entièrement
prevalu. On s'attendoit depuis quelque temps à ce qui est arrivé au
comte de Rochester; mais l'exécution 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 à présent que sur la
religion. Le roi est absolument gouverné par les catholiques. My Lord
Sunderland ne se maintient que par ceux-ci, et par son dévouement à
faire tout ce qu'il croit être agréable 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 hérétiques] "si l'on pouvoit
espérer de réussir."--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 entièrement de parlement, et à
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 prétendent être bons Anglois,
c'est-à-dire, ne pas désirer que le roi d'Angleterre ôte à la nation
ses privilèges et ses libertés." 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 matière fort
délicate à traiter. Je sais pourtant qu'on en parle au roi
d'Angleterre; et qu'avec le temps on ne désespère pas de trouver des
moyens pour faire passer la couronne sur la tête d'un heritier
catholique. Il faut pour cela venir à bout de beaucoup des choses qui
ne sont encore que commencées."

[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'écria-t-il avec emportement. "Monsieur! si le parlement avoit voulu,
s'il vouloit encore, j'aurois porté, je porterois encore la monarchie
a un de considération qu'elle n'a jamais eu sous aucune des rois mes
prédécesseurs, et votre état y trouveroit peut-être sa propre
sécurité.'" Vol. ii. 165. Sunderland said to Barillon, "Le roi
d'Angleterre se reproche de ne pas être en Europe tout ce qu'il devoit
être; et souvent il se plaint que le roi votre maître n'a pas pour lui
assez de considération." _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 désir que j'ai de voir la
religion catholique bien établie en Angleterre, il faut croire qu'il
se trouve assez de force et d'autorité pour exécuter ses desseins,
puis-qu'il n'a pas recours à 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 frère 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 £1,200,000 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 £1,500,964; to which something more than £400,000
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 £1,700,000.
Of this £610,000 was the charge of the late king's army, and £83,493
of the ordnance. Nearly £90,000 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 £1,200,000
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 £700,000
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 £100 to any
informer against a priest exercising his functions, and adjudges the
penalty of perpetual imprisonment. It requires every person educated
in the popish religion, or professing the same, within six months
after he shall attain the age of eighteen years, to take the oaths of
allegiance and supremacy, and subscribe the declaration set down in
the act of Charles II. against transubstantiation and the worship of
saints; in default of which he is incapacitated, not only to purchase,
but to inherit or take lands under any devise or limitation. The next
of kin being a protestant shall enjoy such lands during his
life.[268] So unjust, so unprovoked a persecution is the disgrace of
that parliament. But the spirit of liberty and tolerance was too
strong for the tyranny of the law; and this statute was not executed
according to its purpose. The catholic land-holders neither renounced
their religion, nor abandoned their inheritances. The judges put such
constructions upon the clause of forfeiture as eluded its efficacy;
and, I believe, there were scarce any instances of a loss of property
under this law. It has been said, and I doubt not with justice, that
the catholic gentry, during the greater part of the eighteenth
century, were as a separated and half proscribed class among their
equals, their civil exclusion hanging over them in the intercourse of
general society;[269] but their notorious, though not unnatural,
disaffection to the reigning family will account for much of this, and
their religion was undoubtedly exercised with little disguise or
apprehension. The laws were perhaps not much less severe and
sanguinary than those which oppressed the protestants of France; but,
in their actual administration, what a contrast between the government
of George II. and Louis XV., between the gentleness of an English
court of king's bench, and the ferocity of the parliaments of Aix and
Thoulouse!

_Act of settlement._--The immediate settlement of the Crown at the
revolution extended only to the descendants of Anne and of William.
The former was at that time pregnant, and became in a few months the
mother of a son. Nothing therefore urged the convention-parliament to
go any farther in limiting the succession. But the king, in order to
secure the elector of Hanover to the grand alliance, was desirous to
settle the reversion of the Crown on his wife the Princess Sophia and
her posterity. A provision to this effect was inserted in the bill of
rights by the House of Lords. But the Commons rejected the amendment
with little opposition; not, as Burnet idly insinuates through the
secret wish of a republican party (which never existed, or had no
influence) to let the monarchy die a natural death, but from a just
sense that the provision was unnecessary and might become
inexpedient.[270] During the life of the young Duke of Gloucester the
course of succession appeared clear. But upon his untimely death in
1700, the manifest improbability that the limitations already
established could subsist beyond the lives of the king and Princess of
Denmark made it highly convenient to preclude intrigue, and cut off
the hopes of the jacobites, by a new settlement of the Crown on a
protestant line of princes. Though the choice was truly free in the
hands of parliament, and no pretext of absolute right could be
advanced on any side, there was no question that the Princess Sophia
was the fittest object of the nation's preference. She was indeed very
far removed from any hereditary title. Besides the pretended Prince of
Wales, and his sister, whose legitimacy no one disputed, there stood
in her way the Duchess of Savoy, daughter of Henrietta Duchess of
Orleans, and several of the Palatine family. These last had abjured
the reformed faith, of which their ancestors had been the strenuous
assertors; but it seemed not improbable that some one might return to
it; and, if all hereditary right of the ancient English royal line,
the descendant of Henry VII., had not been extinguished, it would have
been necessary to secure the succession of any prince, who should
profess the protestant religion at the time when the existing
limitations should come to an end. Nor indeed, on the supposition that
the next heir had a right to enjoy the Crown, would the act of
settlement have been required.[271] According to the tenor and
intention of this statute, all prior claims of inheritance, save that
of the issue of King William and the Princess Anne, being set aside
and annulled, the Princess Sophia became the source of a new royal
line. The throne of England and Ireland, by virtue of the paramount
will of parliament, stands entailed upon the heirs of her body, being
protestants. In them the right is as truly hereditary as it ever was
in the Plantagenets or the Tudors. But they derive it not from those
ancient families. The blood indeed of Cerdic and of the Conqueror
flows in the veins of his present majesty. Our Edwards and Henries
illustrate the almost unrivalled splendour and antiquity of the house
of Brunswick. But they have transmitted no more right to the
allegiance of England than Boniface of Este or Henry the Lion. That
rests wholly on the act of settlement, and resolves itself into the
sovereignty of the legislature. We have therefore an abundant security
that no prince of the house of Brunswick will ever countenance the
silly theories of imprescriptible right, which flattery and
superstition seem still to render current in other countries. He would
brand his own brow with the names of upstart and usurper. For the
history of the revolution, and of that change in the succession which
ensued upon it, will for ages to come be fresh and familiar as the
recollections of yesterday. And if the people's choice be, as surely
it is, the primary foundation of magistracy, it is perhaps more
honourable to be nearer the source than to deduce a title from some
obscure chieftain, through a long roll of tyrants and idiots.

The majority of that House of Commons which passed the bill of
settlement consisted of those who having long opposed the
administration of William, though with very different principles both
as to the succession of the Crown and its prerogative, were now often
called by the general name of tories. Some, no doubt, of these were
adverse to a measure which precluded the restoration of the house of
Stuart, even on the contingency that its heir might embrace the
protestant religion. But this party could not show itself very openly;
and Harley, the new leader of the tories, zealously supported the
entail of the Crown on the Princess Sophia. But it was determined to
accompany this settlement with additional securities for the subject's
liberty. The bill of rights was reckoned hasty and defective; some
matters of great importance had been omitted, and in the twelve years
which had since elapsed, new abuses had called for new remedies. Eight
articles were therefore inserted in the act of settlement, to take
effect only from the commencement of the new limitation to the house
of Hanover. Some of them, as will appear, sprung from a natural
jealousy of this unknown and foreign line; some should strictly not
have been postponed so long; but it is necessary to be content with
what it is practicable to obtain. These articles are the following:--

That whosoever shall hereafter come to the possession of this Crown,
shall join in communion with the church of England as by law
established.

That in case the Crown and imperial dignity of this realm shall
hereafter come to any person, not being a native of this kingdom of
England, this nation be not obliged to engage in any war for the
defence of any dominions or territories which do not belong to the
Crown of England, without the consent of parliament.

That no person who shall hereafter come to the possession of this
Crown, shall go out of the dominions of England, Scotland, or Ireland,
without consent of parliament.

That from and after the time that the further limitation by this act
shall take effect, all matters and things relating to the well
governing of this kingdom, which are properly cognisable in the privy
council by the laws and customs of this realm, shall be transacted
there, and all resolutions taken thereupon shall be signed by such of
the privy council as shall advise and consent to the same.

That, after the said limitation shall take effect as aforesaid, no
person born out of the kingdoms of England, Scotland, or Ireland, or
the dominions thereunto belonging (although he be naturalised or made
a denizen--except such as are born of English parents), shall be
capable to be of the privy council, or a member of either house of
parliament, or to enjoy any office or place of trust, either civil or
military, or to have any grant of lands, tenements, or hereditaments,
from the Crown, to himself, or to any other or others in trust for
him.

That no person who has an office or place of profit under the king, or
receives a pension from the Crown, shall be capable of serving as a
member of the House of Commons.

That, after the said limitation shall take effect as aforesaid,
judges' commissions be made quamdiu se bene gesserint, and their
salaries ascertained and established; but, upon the address of both
houses of parliament, it may be lawful to remove them.

That no pardon under the great seal of England be pleadable to an
impeachment by the Commons in parliament.[272]

The first of these provisions was well adapted to obviate the jealousy
which the succession of a new dynasty, bred in a protestant church not
altogether agreeing with our own, might excite in our susceptible
nation. A similar apprehension of foreign government produced the
second article, which so far limits the royal prerogative that any
minister who could be proved to have advised or abetted a declaration
of war in the specified contingency would be criminally responsible to
parliament.[273] The third article was repealed very soon after the
accession of George I., whose frequent journeys to Hanover were an
abuse of the graciousness with which the parliament consented to annul
the restriction.[274]

_Privy council superseded by a cabinet._--A very remarkable alteration
that had been silently wrought in the course of the executive
government, gave rise to the fourth of the remedial articles in the
act of settlement. According to the original constitution of our
monarchy, the king had his privy council composed of the great
officers of state, and of such others as he should summon to it, bound
by an oath of fidelity and secrecy, by whom all affairs of weight,
whether as to domestic or exterior policy, were debated for the most
part in his presence, and determined, subordinately of course to his
pleasure, by the vote of the major part. It could not happen but that
some counsellors more eminent than the rest should form juntos or
cabals, for more close and private management, or be selected as more
confidential advisers of their sovereign; and the very name of a
cabinet council, as distinguished from the large body, may be found as
far back as the reign of Charles I. But the resolutions of the Crown,
whether as to foreign alliances or the issuing of proclamations and
orders at home, or any other overt act of government, were not finally
taken without the deliberation and assent of that body whom the law
recognised as its sworn and notorious counsellors. This was first
broken in upon after the restoration, and especially after the fall of
Clarendon, a strenuous assertor of the rights and dignity of the privy
council. "The king," as he complains, "had in his nature so little
reverence and esteem for antiquity, and did in truth so much contemn
old orders, forms, and institutions, that the objection of novelty
rather advanced than obstructed any proposition."[275] He wanted to be
absolute on the French plan, for which both he and his brother, as the
same historian tells us, had a great predilection, rather than obtain
a power little less arbitrary, so far at least as private rights were
concerned, on the system of his three predecessors. The delays and the
decencies of a regular council, the continual hesitation of lawyers,
were not suited to his temper, his talents, or his designs. And it
must indeed be admitted that the privy council, even as it was then
constituted, was too numerous for the practical administration of
supreme power. Thus by degrees it became usual for the ministry or
cabinet to obtain the king's final approbation of their measures,
before they were laid, for a merely formal ratification, before the
council. It was one object of Sir William Temple's short-lived scheme
in 1679 to bring back the ancient course; the king pledging himself on
the formation of his new privy council to act in all things by its
advice.

_Exclusion of placemen and pensioners from parliament._--During the
reign of William, this distinction of the cabinet from the privy
council, and the exclusion of the latter from all business of state
became more fully established.[276] This however produced a serious
consequence as to the responsibility of the advisers of the Crown; and
at the very time when the controlling and chastising power of
parliament was most effectually recognised, it was silently eluded by
the concealment in which the objects of its enquiry could wrap
themselves. Thus, in the instance of a treaty which the House of
Commons might deem mischievous and dishonourable, the chancellor
setting the great seal to it would of course be responsible; but it is
not so evident that the first lord of the treasury, or others more
immediately advising the Crown on the course of foreign policy, could
be liable to impeachment with any prospect of success, for an act in
which their participation could not be legally proved. I do not mean
that evidence may not possibly be obtained which would affect the
leaders of a cabinet, as in the instances of Oxford and Bolingbroke;
but that, the cabinet itself having no legal existence, and its
members being surely not amenable to punishment in their simple
capacity of privy counsellors, which they generally share, in modern
times, with a great number even of their adversaries, there is no
tangible character to which responsibility is attached; nothing,
except a signature or the setting of a seal, from which a bad minister
need entertain any further apprehension than that of losing his post
and reputation.[277] It may be that no absolute corrective is
practicable for this apparent deficiency in our constitutional
security; but it is expedient to keep it well in mind, because all
ministers speak loudly of their responsibility, and are apt, upon
faith of this imaginary guarantee, to obtain a previous confidence
from parliament which they may in fact abuse with impunity. For should
the bad success or detected guilt of their measures raise a popular
cry against them, and censure or penalty be demanded by their
opponents, they will infallibly shroud their persons in the dark
recesses of the cabinet, and employ every art to shift off the burthen
of individual liability.

William III., from the reservedness of his disposition as well as from
the great superiority of his capacity for affairs to any of our former
kings, was far less guided by any responsible counsellors than the
spirit of our constitution requires. In the business of the partition
treaty, which, whether rightly or otherwise, the House of Commons
reckoned highly injurious to the public interest, he had not even
consulted his cabinet; nor could any minister, except the Earl of
Portland and Lord Somers, be proved to have had a concern in the
transaction; for, though the house impeached Lord Orford and Lord
Halifax, they were not in fact any farther parties to it than by being
in the secret, and the former had shown his usual intractability by
objecting to the whole measure. This was undoubtedly such a departure
from sound constitutional usage as left parliament no control over the
executive administration. It was endeavoured to restore the ancient
principle by this provision in the act of settlement, that, after the
accession of the house of Hanover, all resolutions as to government
should be debated in the privy council, and signed by those present.
But, whether it were that real objections were found to stand in the
way of this article, or that ministers shrunk back from so definite a
responsibility, they procured its repeal a very few years
afterwards.[278] The plans of government are discussed and determined
in a cabinet council, forming indeed part of the larger body, but
unknown to the law by any distinct character or special appointment. I
conceive, though I have not the means of tracing the matter clearly,
that this change has prodigiously augmented the direct authority of
the secretaries of state, especially as to the interior department,
who communicate the king's pleasure in the first instance to
subordinate officers and magistrates, in cases which, down at least to
the time of Charles I., would have been determined in council. But
proclamations and orders still emanate, as the law requires, from the
privy council; and on some rare occasions, even of late years, matters
of domestic policy have been referred to their advice. It is generally
understood, however, that no counsellor is to attend, except when
summoned;[279] so that, unnecessarily numerous as the council has
become, in order to gratify vanity by a titular honour, these special
meetings consist only of a few persons besides the actual ministers of
the cabinet, and give the latter no apprehension of a formidable
resistance. Yet there can be no reasonable doubt that every counsellor
is as much answerable for the measures adopted by his consent, and
especially when ratified by his signature, as those who bear the name
of ministers, and who have generally determined upon them before he is
summoned.

The experience of William's partiality to Bentinck and Keppel, in the
latter instance not very consistent with the good sense and dignity of
his character, led to a strong measure of precaution against the
probable influence of foreigners under the new dynasty; the exclusion
of all persons not born within the dominions of the British Crown from
every office of civil and military trust, and from both houses of
parliament. No other country, as far as I recollect, has adopted so
sweeping a disqualification; and it must, I think, be admitted that it
goes a greater length than liberal policy can be said to warrant. But
the narrow prejudices of George I. were well restrained by this
provision from gratifying his corrupt and servile German favourites
with lucrative offices.[280]

The next article is of far more importance; and would, had it
continued in force, have perpetuated that struggle between the
different parts of the legislature, especially the Crown and House of
Commons, which the new limitations of the monarchy were intended to
annihilate. The baneful system of rendering the parliament subservient
to the administration, either by offices and pensions held at
pleasure, or by more clandestine corruption, had not ceased with the
house of Stuart. William, not long after his accession, fell into the
worst part of this management, which it was most difficult to prevent;
and, according to the practice of Charles's reign, induced by secret
bribes the leaders of parliamentary opposition to betray their cause
on particular questions. The tory patriot, Sir Christopher Musgrave,
trod in the steps of the whig patriot, Sir Thomas Lee. A large
expenditure appeared every year, under the head of secret service
money; which was pretty well known, and sometimes proved, to be
disposed of, in great part, among the members of both houses.[281] No
check was put on the number or quality of placemen in the lower
house. New offices were continually created, and at unreasonable
salaries. Those who desired to see a regard to virtue and liberty in
the parliament of England could not be insensible to the enormous
mischief of this influence. If some apology might be offered for it in
the precarious state of the revolution government, this did not take
away the possibility of future danger, when the monarchy should have
regained its usual stability. But in seeking for a remedy against the
peculiar evil of the times, the party in opposition to the court
during this reign, whose efforts at reformation were too frequently
misdirected, either through faction or some sinister regards towards
the deposed family, went into the preposterous extremity of banishing
all servants of the Crown from the House of Commons. Whether the bill
for free and impartial proceedings in parliament, which was rejected
by a very small majority of the House of Lords in 1693, and having in
the next session passed through both houses, met with the king's
negative, to the great disappointment and displeasure of the Commons,
was of this general nature, or excluded only certain specified
officers of the Crown, I am not able to determine; though the prudence
and expediency of William's refusal must depend entirely upon that
question.[282] But in the act of settlement, the clause is quite
without exception; and, if it had ever taken effect, no minister could
have had a seat in the House of Commons, to bring forward, explain, or
defend the measures of the executive government. Such a separation and
want of intelligence between the Crown and parliament must either have
destroyed the one, or degraded the other. The House of Commons would
either, in jealousy and passion, have armed the strength of the people
to subvert the monarchy, or, losing that effective control over the
appointment of ministers, which has sometimes gone near to their
nomination, would have fallen almost into the condition of those
states-general of ancient kingdoms, which have met only to be cajoled
into subsidies, and give a passive consent to the propositions of the
court. It is one of the greatest safeguards of our liberty, that
eloquent and ambitious men, such as aspire to guide the councils of
the Crown, are from habit and use so connected with the houses of
parliament, and derive from them so much of their renown and
influence, that they lie under no temptation, nor could without
insanity be prevailed upon, to diminish the authority and privileges
of that assembly. No English statesman, since the revolution, can be
liable to the very slightest suspicion of an aim, or even a wish, to
establish absolute monarchy on the ruins of our constitution. Whatever
else has been done, or designed to be done amiss, the rights of
parliament have been out of danger. They have, whenever a man of
powerful mind shall direct the cabinet, and none else can possibly be
formidable, the strong security of his own interest, which no such man
will desire to build on the caprice and intrigue of a court. And, as
this immediate connection of the advisers of the Crown with the House
of Commons, so that they are, and ever profess themselves, as truly
the servants of one as of the other, is a pledge for their loyalty to
the entire legislature, as well as to their sovereign (I mean, of
course, as to the fundamental principles of our constitution), so has
it preserved for the Commons their preponderating share in the
executive administration, and elevated them in the eyes of foreign
nations, till the monarchy itself has fallen comparatively into shade.
The pulse of Europe beats according to the tone of our parliament; the
counsels of our kings are there revealed, and by that kind of previous
sanction which it has been customary to obtain, become, as it were,
the resolutions of a senate; and we enjoy the individual pride and
dignity which belong to republicans, with the steadiness and
tranquillity which the supremacy of a single person has been supposed
peculiarly to bestow.

But, if the chief ministers of the Crown are indispensably to be
present in one or other house of parliament, it by no means follows
that the doors should be thrown open to all those subaltern retainers,
who, too low to have had any participation in the measures of
government, come merely to earn their salaries by a sure and silent
vote. Unless some limitation could be put on the number of such
officers, they might become the majority of every parliament,
especially if its duration were indefinite or very long. It was always
the popular endeavour of the opposition, or, as it was usually
denominated, the country party, to reduce the number of these
dependants; and as constantly the whole strength of the court was
exerted to keep them up. William, in truth, from his own errors, and
from the disadvantage of the times, would not venture to confide in an
unbiassed parliament. On the formation, however, of a new board of
revenue, in 1694, for managing the stamp-duties, its members were
incapacitated from sitting in the House of Commons.[283] This, I
believe, is the first instance of exclusion on account of employment;
and a similar act was obtained in 1699, extending this disability to
the commissioners and some other officers of excise.[284] But when the
absolute exclusion of all civil and military officers by the act of
settlement was found, on cool reflection, too impracticable to be
maintained, and a revision of that article took place in the year
1706, the House of Commons were still determined to preserve at least
the principle of limitation, as to the number of placemen within their
walls. They gave way indeed to the other house in a considerable
degree, receding, with some unwillingness, from a clause specifying
expressly the description of offices which should not create a
disqualification, and consenting to an entire repeal of the original
article.[285] But they established two provisions of great importance,
which still continue the great securities against an overwhelming
influence: first, that every member of the House of Commons accepting
an office under the Crown, except a higher commission in the army,
shall vacate his seat, and a new writ shall issue; secondly, that no
person holding an office created since the 25th of October 1705, shall
be capable of being elected or re-elected at all. They excluded at the
same time all such as held pensions during the pleasure of the Crown;
and, to check the multiplication of placemen, enacted, that no greater
number of commissioners should be appointed to execute any office than
had been employed in its execution at some time before that
parliament.[286] These restrictions ought to be rigorously and
jealously maintained, and to receive a construction, in doubtful
cases, according to their constitutional spirit; not as if they were
of a penal nature towards individuals, an absurdity in which the
careless and indulgent temper of modern times might sometimes
acquiesce.

_Independence of judges._--It had been the practice of the Stuarts,
especially in the last years of their dynasty, to dismiss judges,
without seeking any other pretence, who showed any disposition to
thwart government in political prosecutions. The general behaviour of
the bench had covered it with infamy. Though the real security for an
honest court of justice must be found in their responsibility to
parliament and to public opinion, it was evident that their tenure in
office must, in the first place, cease to be precarious, and their
integrity rescued from the severe trial of forfeiting the emoluments
upon which they subsisted. In the debates previous to the declaration
of rights, we find that several speakers insisted on making the
judges' commissions _quamdiu se bene gesserint_, that is, during life
or good behaviour, instead of _durante placito_, at the discretion of
the Crown. The former, indeed, is said to have been the ancient course
till the reign of James I. But this was omitted in the hasty and
imperfect bill of rights. The commissions however of William's judges
ran _quamdiu se bene gesserint_. But the king gave an unfortunate
instance of his very injudicious tenacity of bad prerogatives, in
refusing his assent, in 1692, to a bill that had passed both houses,
for establishing this independence of the judges by law and confirming
their salaries.[287] We owe this important provision to the act of
settlement; not as ignorance and adulation have perpetually asserted,
to his late majesty George III. No judge can be dismissed from office,
except in consequence of a conviction for some offence, or the address
of both houses of parliament, which is tantamount to an act of the
legislature.[288] It is always to be kept in mind that they are still
accessible to the hope of further promotion, to the zeal of political
attachment, to the flattery of princes and ministers; that the bias of
their prejudices, as elderly and peaceable men, will, in a plurality
of cases, be on the side of power; that they have very frequently been
trained, as advocates, to vindicate every proceeding of the Crown;
from all which we should look on them with some little vigilance, and
not come hastily to a conclusion that, because their commissions
cannot be vacated by the Crown's authority, they are wholly out of the
reach of its influence. I would by no means be misinterpreted, as if
the general conduct of our courts of justice since the revolution, and
especially in later times, which in most respects have been the best
times, were not deserving of that credit it has usually gained; but
possibly it may have been more guided and kept straight than some are
willing to acknowledge by the spirit of observation and censure which
modifies and controls our whole government.

The last clause in the act of settlement, that a pardon under the
great seal shall not be pleadable in bar of an impeachment, requires
no particular notice beyond what has been said on the subject in a
former chapter.[289]

_Oath of abjuration._--In the following session a new parliament
having been assembled, in which the tory faction had less influence
than in the last, and Louis XIV. having, in the meantime, acknowledged
the son of James as King of England, the natural resentment of this
insult and breach of faith was shown in a more decided assertion of
revolution principles than had hitherto been made. The pretended king
was attainted of high treason; a measure absurd as a law, but politic
as a denunciation of perpetual enmity.[290] It was made high treason
to correspond with him, or remit money for his service. And a still
more vigorous measure was adopted, an oath to be taken, not only by
all civil officers, but by all ecclesiastics, members of the
universities, and schoolmasters, acknowledging William as lawful and
rightful king, and denying any right or title in the pretended Prince
of Wales.[291] The tories, and especially Lord Nottingham, had
earnestly contended, in the beginning of the king's reign, against
those words on the act of recognition, which asserted William and Mary
to be rightfully and lawfully king and queen. They opposed the
association at the time of the assassination plot, on account of the
same epithets, taking a distinction which satisfied the narrow
understanding of Nottingham, and served as a subterfuge for more
cunning men, between a king whom they were bound in all cases to obey
and one whom they could style rightful and lawful. These expressions
were in fact slightly modified on that occasion; yet fifteen peers and
ninety-two commoners declined, at least for a time, to sign it. The
present oath of abjuration therefore was a signal victory of the whigs
who boasted of the revolution over the tories who excused it.[292] The
renunciation of the hereditary right, for at this time few of the
latter party believed in the young man's spuriousness, was complete
and unequivocal. The dominant faction might enjoy perhaps a charitable
pleasure in exposing many of their adversaries, and especially the
high church clergy, to the disgrace and remorse of perjury. Few or
none however who had taken the oath of allegiance, refused this
additional cup of bitterness, though so much less defensible,
according to the principles they had employed to vindicate their
compliance in the former instance; so true it is that, in matters of
conscience, the first scruple is the only one which it costs much to
overcome. But the imposition of this test, as was evident in a few
years, did not check the boldness, or diminish the numbers, of the
Jacobites; and I must confess, that of all sophistry that weakens
moral obligation, that is the most pardonable, which men employ to
escape from this species of tyranny. The state may reasonably make an
entire and heartfelt attachment to its authority the condition of
civil trust; but nothing more than a promise of peaceable obedience
can justly be exacted from those who ask only to obey in peace. There
was a bad spirit abroad in the church, ambitious, factious,
intolerant, calumnious; but this was not necessarily partaken by all
its members, and many excellent men might deem themselves hardly dealt
with in requiring their denial of an abstract proposition, which did
not appear so totally false according to their notions of the English
constitution and the church's doctrine.[293]

FOOTNOTES:

[152] _Parl. Hist._ v. 54.

[153] _Parl. Hist._ v. 108.

[154] Journals, 11 and 12 Feb. 1688-9.

[155] _Parl. Hist._ 345.

[156] Lords' Journals, 22 Nov. 1689.

[157] The guards retained out of the old army disbanded at the king's
return, have been already mentioned to have amounted to about 5000
men; though some assert their number at first to have been
considerably less. No objection seems to have been made at the time to
the continuance of these regiments. But in 1667, on the insult offered
to the coasts by the Dutch fleet, a great panic arising, 12,000 fresh
troops were hastily levied. The Commons, on July 25, came to an
unanimous resolution, that his majesty be humbly desired by such
members as are his privy council, that when a peace is concluded, the
new-raised forces be disbanded. The king, four days after, in a speech
to both houses, said, "he wondered what one thing he had done since
his coming into England, to persuade any sober person that he did
intend to govern by a standing army; he said he was more an Englishman
than to do so. He desired, for as much as concerned him, to preserve
the laws," etc. _Parl. Hist._ iv. 363. Next session the two houses
thanked him for having disbanded the late raised forces. _Id._ 369.
But in 1673, during the second Dutch war, a considerable force having
been levied, the House of Commons, after a warm debate, resolved (Nov.
3) that a standing army was a grievance. _Id._ 604. And on February
following, that the continuing of any standing forces in this nation,
other than the militia, is a great grievance and vexation to the
people; and that this house do humbly petition his majesty to cause
immediately to be disbanded that part of them that were raised since
Jan. 1, 1663. _Id._ 665. This was done not long afterwards; but early
in 1678, on the pretext of entering into a war with France, he
suddenly raised an army of 20,000 men or more, according to some
accounts, which gave so much alarm to the parliament, that they would
only vote supplies on condition that these troops should be
immediately disbanded. _Id._ 985. The king, however, employed the
money without doing so; and maintained, in the next session, that it
had been necessary to keep them on foot; intimating at the same time,
that he was now willing to comply, if the house thought it expedient
to disband the troops; which they accordingly voted, with unanimity,
to be necessary for the safety of his majesty's person, and
preservation of the peace of the government. Nov. 25. _Id._ 1049.
James showed, in his speech to parliament (Nov. 9, 1685) that he
intended to keep on foot a standing army. _Id._ 1371. But, though that
House of Commons was very differently composed from those in his
brother's reign, and voted as large a supply as the king required,
they resolved that a bill be brought in to render the militia more
useful; an oblique and timid hint of their disapprobation of a regular
force, against which several members had spoken.

I do not find that any one, even in debate, goes the length of denying
that the king might, by his prerogative, maintain a regular army; none
at least of the resolutions in the Commons can be said to have that
effect.

[158] It is expressly against the petition of right, to quarter troops
on the citizens, or to inflict any punishment by martial law. No court
martial, in fact, can have any coercive jurisdiction except by
statute; unless we should resort to the old tribunal of the constable
and marshal. And that this was admitted, even in bad times, we may
learn by an odd case in Sir Thomas Jones's _Reports_, 147 (Pasch. 33
Car. 2, 1681). An action was brought for assault and false
imprisonment. The defendant pleaded that he was lieutenant-governor of
the isle of Scilly, and that the plaintiff was a soldier belonging to
the garrison, and that it was the ancient custom of the castle, that
if any soldier refused to render obedience, the governor might punish
him by imprisonment for a reasonable time; which he had therefore
done. The plaintiff demurred, and had judgment in his favour. By
demurring, he put it to the court to determine, whether this plea,
which is obviously fabricated in order to cover the want of any
general right to maintain discipline in this manner, were valid in
point of law; which they decided, as it appears, in the negative.

In the next reign, however, an attempt was made to punish deserters
capitally, not by a court martial, but on the authority of an ancient
act of parliament. Chief-Justice Herbert is said to have resigned his
place in the King's Bench rather than come into this. Wright succeeded
him; and two deserters, having been convicted, were executed in
London. Ralph, 961. I cannot discover that there was anything illegal
in the proceeding; and therefore question a little Herbert's motive.
See 3 Inst. 96.

[159] See several in the _Somers Tracts_, vol. x. One of these, a
"Letter to a Member of the Convention," by Dr. Sherlock, is very ably
written: and puts all the consequences of a change of government, as
to popular dissatisfaction, etc., much as they turned out, though, of
course, failing to show that a treaty with the king would be less open
to objection. Sherlock declined for a time to take the oaths; but,
complying afterwards, and writing in vindication, or at least excuse,
of the revolution, incurred the hostility of the Jacobites, and
impaired his own reputation by so interested a want of consistency;
for he had been the most eminent champion of passive obedience. Even
the distinction he found out, of the lawfulness of allegiance to a
king _de facto_, was contrary to his former doctrine.

[160] 1 W. & M. c. 8.

[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 £70,000 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 £30,000. In the end, the house resolved to address
the king, that he would make the princess's income £50,000 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 Révol._ 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 £16,394,702, of which
above three millions were to expire in 1710. Sinclair's _Hist. of
Revenue_, i. 425 (third edition).

Of this sum £664,263 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 £1,328,526, 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, § 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
£72,000,000. 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
£46,233,923. Carte had made them only £32,474,265. 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 _à 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, § 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) £100,000 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 manœuvre 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 £2000 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, § 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 Abbé 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 £300 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] _Mémoires 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 _Mémoires 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 _Mémoires 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 poussée un peu trop loin." _Lettres à 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 _Terræ 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 £5000.
_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 £85,000, 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, £48,000 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 £120,000 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, Γνωθι Σεαθτον 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 Walliæ_ 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 hæreditates remaneant
partibiles inter _consimiles hæredes_."

[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, felonicè per ipsum interfecti, etc.
Venit et bene cognovit quod prædictum Johannem interfecit; dicit tamen
quod per ejus interfectionem feloniam committere non potuit, quia
dicit, quod prædictus 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 prædictâ prout justitia suadebit. Et
super hoc venit quidam Johannes le Poer, et dicit pro domino rege,
quod prædictus Johannes filius Ivor Mac-Gillemory, et antecessores sui
de cognomine prædicto a tempore quo dominus Henricus filius
imperatricis, quondam dominus Hiberniæ, tritavus domini regis nunc,
fuit in Hiberniâ, legem Anglicanam in Hiberniâ 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 £2000 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 £41,000 each, and were thus
apportioned: Leinster paid £13,000 (of which £1000 from the city of
Dublin), Munster £11,000, Ulster £10,000, Connaught £6,800.
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