Chapter XII (2)

_Murder of Sir Edmondbury Godfrey._--The popular ferment which this tale, however undeserving of credit, excited in a predisposed multitude, was naturally wrought to a higher pitch by the very extraordinary circumstances of Sir Edmondbury Godfrey's death. Even at this time, although we reject the imputation thrown on the catholics, and especially on those who suffered death for that murder, it seems impossible to frame any hypothesis which can better account for the facts that seem to be authenticated. That he was murdered by those who designed to lay the charge on the papists, and aggravate the public fury, may pass with those who rely on such writers as Roger North,[742] but has not the slightest corroboration from any evidence; nor does it seem to have been suggested by the contemporary libellers of the court party. That he might have had, as an active magistrate, private enemies, whose revenge took away his life, which seems to be Hume's conjecture, is hardly more satisfactory; the enemies of a magistrate are not likely to have left his person unplundered, nor is it usual for justices of the peace, merely on account of the discharge of their ordinary duties, to incur such desperate resentment. That he fell by his own hands was doubtless the suggestion of those who aimed at discrediting the plot; but it is impossible to reconcile this with the marks of violence which are so positively sworn to have appeared on his neck; and, on a later investigation of the subject in the year 1682, when the court had become very powerful, and a belief in the plot had grown almost a mark of disloyalty, an attempt made to prove the self-murder of Godfrey, in a trial before Pemberton, failed altogether; and the result of the whole evidence, on that occasion, was strongly to confirm the supposition that he had perished by the hands of assassins.[743] His death remains at this moment a problem for which no tolerably satisfactory solution can be offered. But at the time, it was a very natural presumption to connect it with the plot, wherein he had not only taken the deposition of Oates, a circumstance not in itself highly important, but was supposed to have received the confidential communications of Coleman.[744]

Another circumstance, much calculated to persuade ordinary minds of the truth of the plot, was the trial of Reading, a Romish attorney, for tampering with the witnesses against the accused catholic peers, in order to make them keep out of the way.[745] As such clandestine dealing with witnesses creates a strong, and perhaps with some too strong a presumption of guilt, where justice is sure to be uprightly administered, men did not make a fair distinction as to times when the violence of the court and jury gave no reasonable hope of escape; and when the most innocent party would much rather procure the absence of a perjured witness than trust to the chance of disproving his testimony.

_Injustice of judges on the trials._--There was indeed good reason to distrust the course of justice. Never were our tribunals so disgraced by the brutal manners and iniquitous partiality of the bench as in the latter years of this reign. The _State Trials_, none of which appear to have been published by the prisoners' friends, bear abundant testimony to the turpitude of the judges. They explained away and softened the palpable contradictions of the witnesses for the Crown, insulted and threatened those of the accused, checked all cross-examination, assumed the truth of the charge throughout the whole of every trial.[746] One Whitbread, a jesuit, having been indicted with several others, and the evidence not being sufficient, Scroggs discharged the jury of him, but ordered him to be kept in custody till more proof might come in. He was accordingly indicted again for the same offence. On his pleading that he had been already tried, Scroggs and North had the effrontery to deny that he had been ever put in jeopardy, though the witnesses for the Crown had been fully heard before the jury were most irregularly and illegally discharged of him on the former trial. North said he had often known it done, and it was the common course of law. In the course of this proceeding, Bedloe, who had deposed nothing explicit against the prisoner on the former trial, accounted for this by saying, it was not then convenient; an answer with which the court and jury were content.[747]

It is remarkable that, although the king might be justly surmised to give little credence to the pretended plot, and the Duke of York was manifestly affected in his interests by the heats it excited, yet the judges most subservient to the court, Scroggs, North, Jones, went with all violence into the popular cry, till, the witnesses beginning to attack the queen, and to menace the duke, they found it was time to rein in, as far as they could, the passions they had instigated.[748] Pemberton, a more honest man in political matters, showed a remarkable intemperance and unfairness in all trials relating to popery. Even in that of Lord Stafford in 1680, the last, and perhaps the worst, proceeding under this delusion, though the court had a standing majority in the House of Lords, he was convicted by fifty-five peers against thirty-one; the Earl of Nottingham, lord chancellor, the Duke of Lauderdale, and several others of the administration voting him guilty, while he was acquitted by the honest Hollis and the acute Halifax.[749] So far was the belief in the popish plot, or the eagerness in hunting its victims to death, from being confined to the whig faction, as some writers have been willing to insinuate. None had more contributed to rouse the national outcry against the accused, and create a firm persuasion of the reality of the plot, than the clergy in their sermons, even the most respectable of their order, Sancroft, Sharp, Barlow, Burnet, Tillotson, Stillingfleet; inferring its truth from Godfrey's murder or Coleman's letters, calling for the severest laws against catholics, and imputing to them the fire of London, nay, even the death of Charles I.[750]

_Exclusion of Duke of York proposed._--Though the Duke of York was not charged with participation in the darkest schemes of the popish conspirators, it was evident that his succession was the great aim of their endeavours, and evident also that he had been engaged in the more real and undeniable intrigues of Coleman. His accession to the throne, long viewed with just apprehension, now seemed to threaten such perils to every part of the constitution, as ought not supinely to be waited for, if any means could be devised to obviate them. This gave rise to the bold measure of the exclusion bill, too bold indeed for the spirit of the country, and the rock on which English liberty was nearly shipwrecked. In the long parliament, full as it was of pensioners and creatures of court influence, nothing so vigorous would have been successful. Even in the bill which excluded catholic peers from sitting in the House of Lords, a proviso, exempting the Duke of York from its operation, having been sent down from the other house, passed by a majority of two voices.[751] But the zeal they showed against Danby induced the king to put an end to this parliament of seventeen years' duration; an event long ardently desired by the popular party, who foresaw their ascendancy in the new elections.[752] The next House of Commons accordingly came together with an ardour not yet quenched by corruption; and after reviving the impeachments commenced by their predecessors, and carrying a measure long in agitation, a test[753] which shut the catholic peers out of parliament, went upon the exclusion bill. Their dissolution put a stop to this; and in the next parliament the Lords rejected it.[754]

The right of excluding an unworthy heir from the succession was supported not only by the plain and fundamental principles of civil society, which establish the interest of the people to be the paramount object of political institutions, but by those of the English constitution. It had always been the better opinion among lawyers, that the reigning king with consent of parliament was competent to make any changes in the inheritance of the Crown; and this, besides the acts passed under Henry VIII. empowering him to name his successor, was expressly enacted, with heavy penalties against such as should contradict it, in the thirteenth year of Elizabeth. The contrary doctrine indeed, if pressed to its legitimate consequences, would have shaken all the statutes that limit the prerogative; since, if the analogy of entails in private inheritances were to be resorted to, and the existing legislature should be supposed incompetent to alter the line of succession, they could as little impair as they could alienate the indefeasible rights of the heir; nor could he be bound by restrictions to which he had never given his assent. It seemed strange to maintain that the parliament could reduce a king of England to the condition of a doge of Venice, by shackling and taking away his authority, and yet could not divest him of a title which they could render little better than a mockery. Those accordingly who disputed the legislative omnipotence of parliament did not hesitate to assert that statutes infringing on the prerogative were null of themselves. With the court lawyers conspired the clergy, who pretended these matters of high policy and constitutional law to be within their province; and, with hardly an exception, took a zealous part against the exclusion. It was indeed a measure repugnant to the common prejudices of mankind; who, without entering on the abstract competency of parliament, are naturally accustomed in an hereditary monarchy to consider the next heir as possessed of a right, which, except through necessity, or notorious criminality, cannot be justly divested. The mere profession of a religion different from the established, does not seem, abstractedly considered, an adequate ground for unsettling the regular order of inheritance. Yet such was the narrow bigotry of the sixteenth and seventeenth centuries, which died away almost entirely among protestants in the next, that even the trifling differences between Lutherans and Calvinists had frequently led to alternate persecutions in the German states, as a prince of one or the other denomination happened to assume the government. And the Romish religion, in particular, was in that age of so restless and malignant a character, that unless the power of the Crown should be far more strictly limited than had hitherto been the case, there must be a very serious danger from any sovereign of that faith; and the letters of Coleman, as well as other evidences, made it manifest that the Duke of York was engaged in a scheme of general conversion, which, from his arbitrary temper and the impossibility of succeeding by fair means, it was just to apprehend, must involve the subversion of all civil liberty. Still this was not distinctly perceived by persons at a distance from the scene, imbued, as most of the gentry were, with the principles of the old cavaliers, and those which the church had inculcated. The king, though hated by the dissenters, retained the affections of that party, who forgave the vices they deplored, to his father's memory and his personal affability. It appeared harsh and disloyal to force his consent to the exclusion of a brother in whom he saw no crime, and to avoid which he offered every possible expedient.[755] There will always be found in the people of England a strong unwillingness to force the reluctance of their sovereign--a latent feeling, of which parties in the heat of their triumphs are seldom aware, because it does not display itself until the moment of reaction. And although, in the less settled times before the revolution, this personal loyalty was highly dangerous, and may still, no doubt, sometimes break out so as to frustrate objects of high import to the public weal, it is on the whole a salutary temper for the conservation of the monarchy, which may require such a barrier against the encroachments of factions and the fervid passions of the multitude.

_Schemes of Shaftesbury and Monmouth._--The bill of exclusion was drawn with as much regard to the inheritance of the Duke of York's daughters as they could reasonably demand, or as any lawyer engaged for them could have shown; though something different seems to be insinuated by Burnet. It provided that the imperial crown of England should descend to and be enjoyed by such person or persons successively during the life of the Duke of York, as should have inherited or enjoyed the same in case he were naturally dead. If the Princess of Orange was not expressly named (which, the bishop tells us, gave a jealousy, as though it were intended to keep that matter still undetermined), this silence was evidently justified by the possible contingency of the birth of a son to the duke, whose right there was no intention in the framers of the bill to defeat. But a large part of the opposition had unfortunately other objects in view. It had been the great error of those who withstood the arbitrary counsels of Charles II. to have admitted into their closest confidence, and in a considerable degree to the management of their party, a man so destitute of all honest principle as the Earl of Shaftesbury. Under his contaminating influence their passions became more untractable, their connections more seditious and democratical, their schemes more revolutionary, and they broke away more and more from the line of national opinion, till a fatal reaction involved themselves in ruin, and exposed the cause of public liberty to its most imminent peril. The countenance and support of Shaftesbury brought forward that unconstitutional and most impolitic scheme of the Duke of Monmouth's succession. There could hardly be a greater insult to a nation used to respect its hereditary line of kings, than to set up the bastard of a prostitute, without the least pretence of personal excellence or public services, against a princess of known virtue and attachment to the protestant religion. And the effrontery of this attempt was aggravated by the libels eagerly circulated to dupe the credulous populace into a belief of Monmouth's legitimacy. The weak young man, lured on to destruction by the arts of intriguers and the applause of the multitude, gave just offence to sober-minded patriots, who knew where the true hopes of public liberty were anchored, by a kind of triumphal procession through parts of the country, and by other indications of a presumptuous ambition.[756]

_Unsteadiness of the king._--If any apology can be made for the encouragement given by some of the whig party (for it was by no means general) to the pretensions of Monmouth, it must be found in their knowledge of the king's affection for him, which furnished a hope that he might more easily be brought in to the exclusion of his brother for the sake of so beloved a child than for the Prince of Orange. And doubtless there was a period when Charles's acquiescence in the exclusion did not appear so unattainable as, from his subsequent line of behaviour, we are apt to consider it. It appears from the recently published life of James, that in the autumn of 1680 the embarrassment of the king's situation, and the influence of the Duchess of Portsmouth, who had gone over to the exclusionists, made him seriously deliberate on abandoning his brother.[757] Whether from natural instability of judgment, from the steady adherence of France to the Duke of York, or from observing the great strength of the tory party in the House of Lords, where the bill was rejected by a majority of 63 to 30, he soon returned to his former disposition. It was long however before he treated James with perfect cordiality. Conscious of his own insincerity in religion, which the duke's bold avowal of an obnoxious creed seemed to reproach, he was provoked at bearing so much of the odium, and incurring so many of the difficulties, which attended a profession that he had not ventured to make. He told Hyde, before the dissolution of the parliament in 1680, that it would not be in his power to protect his brother any longer, if he did not conform and go to church.[758] Hyde himself, and the duke's other friends, had never ceased to urge him on this subject. Their importunity was renewed by the king's order, even after the dissolution of the Oxford parliament; and it seems to have been the firm persuasion of most about the court that he could only be preserved by conformity to the protestant religion. He justly apprehended the consequences of a refusal; but, inflexibly conscientious on this point, he braved whatever might arise from the timidity or disaffection of the ministers and the selfish fickleness of the king.

In the apprehensions excited by the king's unsteadiness and the defection of the Duchess of Portsmouth, he deemed his fortunes so much in jeopardy, as to have resolved on exciting a civil war, rather than yield to the exclusion. He had already told Barillon that the royal authority could be re-established by no other means.[759] The episcopal party in Scotland had gone such lengths that they could hardly be safe under any other king. The catholics of England were of course devoted to him. With the help of these he hoped to show himself so formidable that Charles would find it his interest to quit that cowardly line of politics, to which he was sacrificing his honour and affections. Louis, never insensible to any occasion of rendering England weak and miserable, directed his ambassador to encourage the duke in this guilty project with the promise of assistance.[760] It seems to have been prevented by the wisdom or public spirit of Churchill, who pointed out to Barillon the absurdity of supposing that the duke could stand by himself in Scotland. This scheme of lighting up the flames of civil war in three kingdoms, for James's private advantage, deserves to be more remarked than it has hitherto been at a time when the apologists seem to have become numerous. If the designs of Russell and Sidney for the preservation of their country's liberty are blamed as rash and unjustifiable, what name shall we give to the project of maintaining the pretensions of an individual by means of rebellion and general bloodshed?

It is well known that those who took a concern in the maintenance of religion and liberty, were much divided as to the best expedients for securing them; some, who thought the exclusion too violent, dangerous, or impracticable, preferring the enactment of limitations on the prerogatives of a catholic king. This had begun in fact from the court, who passed a bill through the House of Lords in 1677, for the security, as it was styled, of the protestant religion. This provided that a declaration and oath against transubstantiation should be tendered to every king within fourteen days after his accession; that, on his refusal to take it, the ecclesiastical benefices in the gift of the Crown should vest in the bishops, except that the king should name to every vacant see one out of three persons proposed to him by the bishops of the province. It enacted also, that the children of a king refusing such a test should be educated by the archbishop and two or three more prelates. This bill dropped in the Commons; and Marvell speaks of it as an insidious stratagem of the ministry.[761] It is more easy, however, to give hard names to a measure originating with an obnoxious government, than to prove that it did not afford a considerable security to the established church, and impose a very remarkable limitation on the prerogative. But the opposition in the House of Commons had probably conceived their scheme of exclusion, and would not hearken to any compromise. As soon as the exclusion became the topic of open discussion, the king repeatedly offered to grant every security that could be demanded consistently with the lineal succession. Hollis, Halifax, and for a time Essex, as well as several eminent men in the lower house, were in favour of limitations.[762] But those which they intended to insist upon were such encroachments on the constitutional authority of the Crown, that, except a title and revenue, which Charles thought more valuable than all the rest, a popish king would enjoy no one attribute of royalty. The king himself, on the 30th of April 1679, before the heats on the subject had become so violent as they were the next year, offered not only to secure all ecclesiastical preferments from the control of a popish successor, but to provide that the parliament in being at a demise of the Crown or the last that had been dissolved, should immediately sit and be indissoluble for a certain time; that none of the privy council, nor judges, lord lieutenant, deputy lieutenant, nor officer of the navy, should be appointed during the reign of a catholic king, without consent of parliament. He offered at the same time most readily to consent to any further provision that could occur to the wisdom of parliament for the security of religion and liberty consistently with the right of succession. Halifax, the eloquent and successful opponent of the exclusion, was the avowed champion of limitations. It was proposed, in addition to these offers of the king, that the duke, in case of his accession, should have no negative voice on bills; that he should dispose of no civil or military posts without consent of parliament; that a council of forty-one, nominated by the two houses, should sit permanently during the recess or interval of parliament, with power of appointing to all vacant offices, subject to the future approbation of the Lords and Commons.[763] These extraordinary innovations would, at least for the time, have changed our constitution into a republic; and justly appeared to many persons more revolutionary than an alteration in the course of succession. The Duke of York looked on them with dismay; Charles indeed privately declared that he would never consent to such infringements of the prerogative.[764] It is not however easy to perceive how he could have escaped from the necessity of adhering to his own propositions, if the House of Commons would have relinquished the bill of exclusion. The Prince of Orange, who was doubtless in secret not averse to the latter measure, declared strongly against the plan of restrictions, which a protestant successor might not find it practicable to shake off. Another expedient, still more ruinous to James than that of limitations, was what the court itself suggested in the Oxford parliament, that the duke retaining the title of king, a regent should be appointed, in the person of the Princess of Orange, with all the royal prerogatives; nay, that the duke, with his pageant crown on his head, should be banished from England during his life.[765] This proposition, which is a great favourite with Burnet, appears liable to the same objections as were justly urged against a similar scheme at the revolution. It was certain that in either case James would attempt to obtain possession of power by force of arms; and the law of England would not treat very favourably those who should resist an acknowledged king in his natural capacity, while the statute of Henry VII. would, legally speaking, afford a security to the adherents of a _de facto_ sovereign.

Upon the whole, it is very unlikely, when we look at the general spirit and temper of the nation, its predilection for the ancient laws, its dread of commonwealth and fanatical principles, the tendency of the upper ranks to intrigue and corruption, the influence and activity of the church, the bold counsels and haughty disposition of James himself, that either the exclusion, or such extensive limitations as were suggested in lieu of it, could have been carried into effect with much hope of a durable settlement. It would, I should conceive, have been practicable to secure the independence of the judges, to exclude unnecessary placemen and notorious pensioners from the House of Commons, to render the distribution of money among its members penal, to remove from the protestant dissenters, by a full toleration, all temptation to favour the court, and, above all, to put down the standing army. Though none perhaps of these provisions would have prevented the attempts of this and the next reign to introduce arbitrary power, they would have rendered them still more grossly illegal; and, above all, they would have saved that unhappy revolution of popular sentiment which gave the court encouragement and temporary success.

_Names of Whig and Tory._--It was in the year 1679, that the words Whig and Tory first were heard in their application to English factions; and, though as senseless as any cant terms that could be devised, they became instantly as familiar in use as they have since continued. There were then indeed questions in agitation, which rendered the distinction more broad and intelligible than it has generally been in later times. One of these, and the most important, was the bill of exclusion; in which, as it was usually debated, the republican principle, that all positive institutions of society are in order to the general good, came into collision with that of monarchy, which rests on the maintenance of a royal line, as either the end, or at least the necessary means, of lawful government. But, as the exclusion was confessedly among those extraordinary measures, to which men of tory principles are sometimes compelled to resort in great emergencies, and which no rational whig espouses at any other time, we shall better perhaps discern the formation of these grand political sects in the petitions for the sitting of parliament, and in the counter addresses of the opposite party.

_New council formed by Sir William Temple._--In the spring of 1679, Charles established a new privy council, by the advice of Sir William Temple, consisting in great part of those eminent men in both houses of parliament, who had been most prominent in their opposition to the late ministry.[766] He publicly declared his resolution to govern entirely by the advice of this council and that of parliament. The Duke of York was kept in what seemed a sort of exile at Brussels.[767] But the just suspicion attached to the king's character prevented the Commons from placing much confidence in this new ministry; and, as frequently happens, abated their esteem for those who, with the purest intentions, had gone into the council.[768] They had soon cause to perceive that their distrust had not been excessive. The ministers were constantly beaten in the House of Lords; an almost certain test, in our government, of the court's insincerity.[769]

_Long prorogation of parliament._--The parliament was first prorogued, then dissolved; against the advice, in the latter instance, of the majority of that council by whom the king had pledged himself to be directed. A new parliament, after being summoned to meet in October 1679, was prorogued for a twelve-month without the avowed concurrence of any member of the council. Lord Russell, and others of the honester party, withdrew from a board where their presence was only asked in mockery or deceit; and the whole specious scheme of Temple came to nothing before the conclusion of the year which had seen it displayed.[770] Its author, chagrined at the disappointment of his patriotism and his vanity, has sought the causes of failure in the folly of Monmouth and perverseness of Shaftesbury. He was not aware, at least in their full extent, of the king's intrigues at this period. Charles, who had been induced to take those whom he most disliked into his council, with the hope of obtaining money from parliament, or of parrying the exclusion bill, and had consented to the Duke of York's quitting England, found himself enthralled by ministers whom he could neither corrupt nor deceive; Essex, the firm and temperate friend of constitutional liberty in power as he had been out of it, and Halifax, not yet led away by ambition or resentment from the cause he never ceased to approve. He had recourse therefore to his accustomed refuge, and humbly implored the aid of Louis against his own council and parliament. He conjured his patron not to lose this opportunity of making England for ever dependent upon France. These are his own words, such at least as Barillon attributes to him.[771] In pursuance of this overture, a secret treaty was negotiated between the two kings; whereby, after long haggling, Charles, for a pension of 1,000,000 livres annually during three years, obliged himself not to assemble parliament during that time. This negotiation was broken off, through the apprehensions of Hyde and Sunderland who had been concerned in it, about the end of November 1679, before the long prorogation which is announced in the _Gazette_ by a proclamation of December 11th. But, the resolution having been already taken not to permit the meeting of parliament, Charles persisted in it as the only means of escaping the bill of exclusion, even when deprived of the pecuniary assistance to which he had trusted.

Though the king's behaviour on this occasion exposed the fallacy of all projects for reconciliation with the House of Commons, it was very well calculated for his own ends; nor was there any part of his reign wherein he acted with so much prudence, as from this time to the dissolution of the Oxford parliament. The scheme concerted by his adversaries, and already put in operation, of pouring in petitions from every part of the kingdom for the meeting of parliament, he checked in the outset by a proclamation, artfully drawn up by Chief-Justice North; which, while it kept clear of anything so palpably unconstitutional as a prohibition of petitions, served the purpose of manifesting the king's dislike to them, and encouraged the magistrates to treat all attempts that way as seditious and illegal, while it drew over the neutral and lukewarm to the safer and stronger side.[772] Then were first ranged against each other the hosts of whig and tory, under their banners of liberty or loyalty; each zealous, at least in profession, to maintain the established constitution, but the one seeking its security by new maxims of government, the other by an adherence to the old.

_Petitions and addresses._--It must be admitted that petitions to the king from bodies of his subjects, intended to advise or influence him in the exercise of his undoubted prerogatives, such as the time of calling parliament together, familiar as they may now have become, had no precedent, except one in the dark year 1640, and were repugnant to the ancient principles of our monarchy. The cardinal maxim of toryism is, that the king ought to exercise all his lawful prerogatives without the interference, or unsolicited advice, even of parliament, much less of the people. These novel efforts therefore were met by addresses from most of the grand juries, from the magistrates at quarter sessions, and from many corporations, expressing not merely their entire confidence in the king, but their abhorrence of the petitions for the assembling of parliament; a term which, having been casually used in one address, became the watchword of the whole party.[773] Some allowance must be made for the exertions made by the court, especially through the judges of assize, whose charges to grand juries were always of a political nature. Yet there can be no doubt that the strength of the tories manifested itself beyond expectation. Sluggish and silent in its fields, like the animal which it has taken for its type, the deep-rooted loyalty of the English gentry to the Crown may escape a superficial observer, till some circumstance calls forth an indignant and furious energy. The temper shown in 1680 was not according to what the late elections would have led men to expect, not even to that of the next elections for the parliament at Oxford. A large majority returned on both these occasions, and that in the principal counties as much as in corporate towns, were of the whig principle. It appears that the ardent zeal against popery in the smaller freeholders must have overpowered the natural influence of the superior classes. The middling and lower orders, particularly in towns, were clamorous against the Duke of York and the evil counsellors of the Crown. But with the country gentlemen, popery was scarce a more odious word than fanaticism; the memory of the late reign and of the usurpation was still recent, and in the violence of the Commons, in the insolence of Monmouth and Shaftesbury, in the bold assaults upon hereditary right, they saw a faint image of that confusion which had once impoverished and humbled them. Meanwhile the king's dissimulation was quite sufficient for these simple loyalists; the very delusion of the popish plot raised his name for religion in their eyes, since his death was the declared aim of the conspirators; nor did he fail to keep alive this favourable prejudice by letting that imposture take its course, and by enforcing the execution of the penal laws against some unfortunate priests.[774]

_Violence of the Commons._--It is among the great advantages of a court in its contention with the asserters of popular privileges, that it can employ a circumspect and dissembling policy, which is never found on the opposite side. The demagogues of faction, or the aristocratic leaders of a numerous assembly, even if they do not feel the influence of the passions they excite, which is rarely the case, are urged onwards by their headstrong followers, and would both lay themselves open to the suspicion of unfaithfulness and damp the spirit of their party, by a wary and temperate course of proceeding. Yet that incautious violence, to which ill-judging men are tempted by the possession of power, must in every case, and especially where the power itself is deemed an usurpation, cast them headlong. This was the fatal error of that House of Commons which met in October 1680; and to this the king's triumph may chiefly be ascribed. The addresses declaratory of abhorrence of petitions for the meeting of parliament were doubtless intemperate with respect to the petitioners; but it was preposterous to treat them as violations of privilege. A few precedents, and those in times of much heat and irregularity, could not justify so flagrant an encroachment on the rights of the private subject, as the commitments of men for a declaration so little affecting the constitutional rights and functions of parliament.[775] The expulsion of Withens, their own member, for promoting one of these addresses, though a violent measure, came in point of law within their acknowledged authority.[776] But it was by no means a generally received opinion in that age that the House of Commons had an unbounded jurisdiction, directly or indirectly, over their constituents. The lawyers, being chiefly on the side of prerogative, inclined at least to limit very greatly this alleged power of commitment for breach of privilege or contempt of the house. It had very rarely, in fact, been exerted, except in cases of serving legal process on members or other molestation, before the long parliament of Charles I.; a time absolutely discredited by one party, and confessed by every reasonable man to be full of innovation and violence. That the Commons had no right of judicature was admitted; was it compatible to principles of reason and justice, that they could, merely by using the words contempt or breach of privilege in a warrant, deprive the subject of that liberty which the recent statute of habeas corpus had secured against the highest ministers of the Crown? Yet one Thompson, a clergyman at Bristol, having preached some virulent sermons, wherein he had traduced the memory of Hampden for refusing the payment of ship-money, and spoken disrespectfully of Queen Elizabeth, as well as insulted those who petitioned for the sitting of parliament, was sent for in custody of the serjeant to answer at the bar for his high misdemeanour against the privileges of that house; and was afterwards compelled to find security for his forthcoming to answer to an impeachment voted against him on these strange charges.[777] Many others were brought to the bar, not only for the crime of abhorrence, but for alleged misdemeanours still less affecting the privileges of parliament, such as remissness in searching for papists. Sir Robert Cann, of Bristol, was sent for in custody of the serjeant-at-arms, for publicly declaring that there was no popish, but only a presbyterian plot. A general panic, mingled with indignation, was diffused through the country, till one Stawell, a gentleman of Devonshire, had the courage to refuse compliance with the speaker's warrant; and the Commons, who hesitated at such a time to risk an appeal to the ordinary magistrates, were compelled to let this contumacy go unpunished. If indeed we might believe the journals of the house, Stawell was actually in custody of the serjeant, though allowed a month's time on account of sickness. This was most probably a subterfuge to conceal the truth of the case.[778]

These encroachments under the name of privilege were exactly in the spirit of the long parliament, and revived too forcibly the recollection of that awful period. It was commonly in men's mouths, that 1641 was come about again. There appeared indeed for several months a very imminent danger of civil war. I have already mentioned the projects of the Duke of York, in case his brother had given way to the exclusion bill. There could be little reason to doubt that many of the opposite leaders were ready to try the question by arms. Reresby has related a conversation he had with Lord Halifax immediately after the rejection of the bill,[779] which shows the expectation of that able statesman, that the differences about the succession would end in civil war. The just abhorrence good men entertain for such a calamity excites their indignation against those who conspicuously bring it on. And, however desirous some of the court might be to strengthen the prerogative by quelling a premature rebellion, the Commons were, in the eyes of the nation, far more prominent in accelerating so terrible a crisis. Their votes in the session of November 1680 were marked by the most extravagant factiousness.[780]

_Oxford parliament._--Their conduct in the short parliament held at Oxford in March 1681, served still more to alienate the peaceable part of the community. That session of eight days was marked by the rejection of a proposal to vest all effective power during the Duke of York's life in a regent, and by an attempt to screen the author of a treasonable libel from punishment under the pretext of impeaching him at the bar of the upper house. It seems difficult not to suspect that the secret instigations of Barillon, and even his gold, had considerable influence on some of those who swayed the votes of this parliament.

_Impeachment of commoners for treason constitutional._--Though the impeachment of Fitzharris, to which I have just alluded, was in itself a mere work of temporary faction, it brought into discussion a considerable question in our constitutional law, which deserves notice, both on account of its importance, and because a popular writer has advanced an untenable proposition on the subject. The Commons impeached this man of high treason. The Lords voted, that he should be proceeded against at common law. It was resolved, in consequence, by the lower house, "that it is the undoubted right of the Commons in parliament assembled, to impeach before the Lords in parliament any peer or commoner for treason, or any other crime or misdemeanour: and that the refusal of the Lords to proceed in parliament upon such impeachment is a denial of justice, and a violation of the constitution of parliament."[781] It seems indeed difficult to justify the determination of the Lords. Certainly the declaration in the case of Sir Simon de Bereford, who having been accused by the king, in the fourth year of Edward III. before the Lords, of participating in the treason of Roger Mortimer, that noble assembly protested, with the assent of the king in full parliament, that, albeit they had taken upon them, as judges of the parliament in the presence of the king, to render judgment, yet the peers, who then were or should be in time to come, were not bound to render judgment upon others than peers, nor had power to do so; and that the said judgment thus rendered should never be drawn to example or consequence in time to come, whereby the said peers of the land might be charged to judge others than their peers, contrary to the laws of the land; certainly, I say, this declaration, even if it amounted to a statute, concerning which there has been some question,[782] was not necessarily to be interpreted as applicable to impeachments at the suit of the Commons, wherein the king is no ways a party. There were several precedents in the reign of Richard II. of such impeachments for treason. There had been more than one in that of Charles I. The objection indeed was so novel, that Chief-Justice Scroggs, having been impeached for treason in the last parliament, though he applied to be admitted to bail, had never insisted on so decisive a plea to the jurisdiction. And if the doctrine, adopted by the Lords, were to be carried to its just consequences, all impeachment of commoners must be at an end; for no distinction is taken in the above declaration as to Bereford between treason and misdemeanour. The peers had indeed lost, except during the session of parliament, their ancient privilege in cases of misdemeanour, and were subject to the verdict of a jury; but the principle was exactly the same, and the right of judging commoners upon impeachment for corruption or embezzlement, which no one called in question, was as much an exception from the ordinary rules of law as in the more rare case of high treason. It is hardly necessary to observe, that the 29th section of Magna Charta, which establishes the right of trial by jury, is by its express language solely applicable to the suits of the Crown.

This very dangerous and apparently unfounded theory, broached upon the occasion of Fitzharris's impeachment by the Earl of Nottingham, never obtained reception; and was rather intimated than avowed in the vote of the Lords, that he should be proceeded against at common law. But after the revolution, the Commons having impeached Sir Adam Blair and some others of high treason, a committee was appointed to search for precedents on this subject; and after full deliberation, the House of Lords came to a resolution, that they would proceed on the impeachments.[783] The inadvertent position therefore of Blackstone,[784] that a commoner cannot be impeached for high treason, is not only difficult to be supported upon ancient authorities, but contrary to the latest determination of the supreme tribunal.

_Proceedings against Shaftesbury and College._--No satisfactory elucidation of the strange libel for which Fitzharris suffered death has yet been afforded. There is much probability in the supposition that it was written at the desire of some in the court, in order to cast odium on their adversaries; a very common stratagem of unscrupulous partisans.[785] It caused an impression unfavourable to the whigs in the nation. The court made a dexterous use of that extreme credulity, which has been supposed characteristic of the English, though it belongs at least equally to every other people. They seized into their hands the very engines of delusion that had been turned against them. Those perjured witnesses, whom Shaftesbury had hallooed on through all the infamy of the popish plot, were now arrayed in the same court to swear treason and conspiracy against him.[786] Though he escaped by the resoluteness of his grand jury, who refused to find a bill of indictment on testimony, which they professed themselves to disbelieve, and which was probably false; yet this extraordinary deviation from the usual practice did harm rather than otherwise to the general cause of his faction. The judges had taken care that the witnesses should be examined in open court, so that the jury's partiality, should they reject such positive testimony, might become glaring. Doubtless it is, in ordinary cases, the duty of a grand juror to find a bill upon the direct testimony of witnesses, where they do not contradict themselves or each other, and where their evidence is not palpably incredible or contrary to his own knowledge.[787] The oath of that inquest is forgotten, either where they render themselves, as seems too often the case, the mere conduit-pipes of accusation, putting a prisoner in jeopardy upon such slender evidence as does not call upon him for a defence; or where, as we have sometimes known in political causes, they frustrate the ends of justice by rejecting indictments which are fully substantiated by testimony. Whether the grand jury of London, in their celebrated ignoramus on the indictment preferred against Shaftesbury, had sufficient grounds for their incredulity, I will not pretend to determine.[788] There was probably no one man among them, who had not implicitly swallowed the tales of the same witnesses in the trials for the plot. The nation however in general, less bigoted, or at least more honest in their bigotry, than those London citizens, was staggered by so many depositions to a traitorous conspiracy, in those who had pretended an excessive loyalty to the king's person.[789] Men unaccustomed to courts of justice are naturally prone to give credit to the positive oaths of witnesses. They were still more persuaded, when, as in the trial of College at Oxford, they saw this testimony sustained by the approbation of a judge (and that judge a decent person who gave no scandal), and confirmed by the verdict of a jury. The gross iniquity practised towards the prisoner in that trial was not so generally bruited as his conviction.[790] There is in England a remarkable confidence in our judicial proceedings, in part derived from their publicity, and partly from the indiscriminate manner in which jurors are usually summoned. It must be owned that the administration of the two last Stuarts was calculated to show how easily this confiding temper might be the dupe of an insidious ambition.

_Triumph of the court._--The king's declaration of the reasons that induced him to dissolve the last parliament, being a manifesto against the late majority of the House of Commons, was read in all churches. The clergy scarcely waited for this pretext to take a zealous part for the Crown. Every one knows their influence over the nation in any cause which they make their own. They seemed to change the war against liberty into a crusade. They re-echoed from every pulpit the strain of passive obedience, of indefeasible hereditary right, of the divine origin and patriarchal descent of monarchy. Now began again the loyal addresses, more numerous and ardent than in the last year, which overspread the pages of the _London Gazette_ for many months. These effusions stigmatise the measures of the three last parliaments, dwelling especially on their arbitrary illegal votes against the personal liberty of the subject. Their language is of course not alike; yet amidst all the ebullitions of triumphant loyalty, it is easy in many of them to perceive a lurking distrust of the majesty to which they did homage, insinuated to the reader in the marked satisfaction with which they allude to the king's promise of calling frequent parliaments and of governing by the laws.[791]

The whigs, meantime, so late in the heyday of their pride, lay, like the fallen angels, prostrate upon the fiery lake. The scoffs and gibes of libellers, who had trembled before the resolutions of the Commons, were showered upon their heads. They had to fear, what was much worse than the insults of these vermin, the perjuries of mercenary informers suborned by their enemies to charge false conspiracies against them, and sure of countenance from the contaminated benches of justice. The court, with an artful policy, though with detestable wickedness, secured itself against its only great danger, the suspicion of popery, by the sacrifice of Plunket, the titular archbishop of Dublin.[792] The execution of this worthy and innocent person cannot be said to have been extorted from the king in a time of great difficulty, like that of Lord Stafford. He was coolly and deliberately permitted to suffer death, lest the current of loyalty, still sensitive and suspicious upon the account of religion, might be somewhat checked in its course. Yet those who heap the epithets of merciless, inhuman, sanguinary, on the whig party for the impeachment of Lord Stafford, in whose guilt they fully believed, seldom mention, without the characteristic distinction of "good-natured," that sovereign, who signed the warrant against Plunket, of whose innocence he was assured.[793]

_Forfeiture of the charter of London, and of other places._--The hostility of the city of London, and of several other towns, towards the court, degenerating no doubt into a factious and indecent violence, gave a pretext for the most dangerous aggression on public liberty that occurred in the present reign. The power of the democracy in that age resided chiefly in the corporations. These returned, exclusively or principally, a majority of the representatives of the commons. So long as they should be actuated by that ardent spirit of protestantism and liberty which prevailed in the middling classes, there was little prospect of obtaining a parliament that would co-operate with the Stuart scheme of government. The administration of justice was very much in the hands of their magistrates; especially in Middlesex, where all juries are returned by the city sheriffs. It was suggested therefore by some crafty lawyers that a judgment of forfeiture obtained against the corporation of London would not only demolish that citadel of insolent rebels, but intimidate the rest of England by so striking an example. True it was, that no precedent could be found for the forfeiture of corporate privileges. But general reasoning was to serve instead of precedents; and there was a considerable analogy in the surrenders of the abbeys under Henry VIII., if much authority could be allowed to that transaction. An information, as it is called, _quo warranto_, was accordingly brought into the court of king's bench against the corporation. Two acts of the common council were alleged as sufficient misdemeanours to warrant a judgment of forfeiture; one, the imposition of certain tolls on goods brought into the city markets, by an ordinance or by-law of their own; the other, their petition to the king in December 1679 for the sitting of parliament, and its publication throughout the country.[794] It would be foreign to the purpose of this work to enquire whether a corporation be in any case subject to forfeiture, the affirmative of which seems to have been held by courts of justice since the revolution; or whether the exaction of tolls in their markets, in consideration of erecting stalls and standings, were within the competence of the city of London; or, if not so, whether it were such an offence as could legally incur the penalty of a total forfeiture and disfranchisement; since it was manifest that the Crown made use only of this additional pretext, in order to punish the corporation for its address to the king. The language indeed of their petition had been uncourtly, and what the adherents of prerogative would call insolent; but it was at the worst rather a misdemeanour for which the persons concerned might be responsible than a breach of the trust reposed in the corporation. We are not however so much concerned to argue the matter of law in this question, as to remark the spirit in which the attack on this stronghold of popular liberty was conceived. The court of king's bench pronounced judgment of forfeiture against the corporation; but this judgment, at the request of the attorney-general, was only recorded: the city continued in appearance to possess its corporate franchises, but upon submission to certain regulations; namely, that no mayor, sheriff, recorder, or other chief officer, should be admitted until approved by the king; that in the event of his twice disapproving their choice of a mayor, he should himself nominate a fit person, and the same in case of sheriffs, without waiting for a second election; that the court of aldermen, with the king's permission, should remove any one of their body; that they should have a negative on the elections of common councilmen, and in case of disapproving a second choice, to have themselves the nomination. The corporation submitted thus to purchase the continued enjoyment of its estates, at the expense of its municipal independence; yet, even in the prostrate condition of the whig party, the question to admit these regulations was carried by no great majority in the common councils.[795] The city was of course absolutely subservient to the court from this time to the revolution.