Chapter XII (3)

After the fall of the capital, it was not to be expected that towns less capable of defence should stand out. Informations _quo warranto_ were brought against several corporations; and a far greater number hastened to anticipate the assault by voluntary surrenders. It seemed to be recognised as law by the judgment against London, that any irregularity or misuse of power in a corporation might incur a sentence of forfeiture; and few could boast that they were invulnerable at every point. The judges of assize in their circuits prostituted their influence and authority to forward this and every other encroachment of the Crown. Jefferies, on the northern circuit in 1684, to use the language of Charles II.'s most unblushing advocate, "made all the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns."[796] They received instead, new charters, framing the constitution of these municipalities on a more oligarchical model, and reserving to the Crown the first appointment of those who were to form the governing part of the corporation. These changes were gradually brought about in the last three years of Charles's reign, and in the beginning of the next.

_Projects of Lord Russell and Sidney._--There can be nothing so destructive to the English constitution, not even the introduction of a military force, as the exclusion of the electoral body from their franchises. The people of this country are, by our laws and constitution, bound only to obey a parliament duly chosen; and this violation of charters, in the reigns of Charles and James, appears to be the great and leading justification of that event which drove the latter from the throne. It can therefore be no matter of censure, in a moral sense, that some men of pure and patriotic virtue, mingled, it must be owned, with others of a far inferior temper, began to hold consultations as to the best means of resisting a government, which, whether to judge from these proceedings, or from the language of its partisans, was aiming without disguise at an arbitrary power. But as resistance to established authority can never be warrantable until it is expedient, we could by no means approve any schemes of insurrection that might be projected in 1682, unless we could perceive that there was a fair chance of their success. And this we are not led, by what we read of the spirit of those times, to believe. The tide ran violently in another direction; the courage of the whigs was broken; their adversaries were strong in numbers and in zeal. But from hence it is reasonable to infer that men, like Lord Essex and Lord Russell, with so much to lose by failure, with such good sense, and such abhorrence of civil calamity, would not ultimately have resolved on the desperate issue of arms, though they might deem it prudent to form estimates of their strength, and to knit together a confederacy which absolute necessity might call into action. It is beyond doubt that the supposed conspirators had debated among themselves the subject of an insurrection, and poised the chances of civil war. Thus much the most jealous lawyer, I presume, will allow might be done, without risking the penalties of treason. They had however gone farther; and by concerting measures in different places as well as in Scotland, for a rising, though contingently, and without any fixed determination to carry it into effect, most probably (if the whole business had been disclosed in testimony) laid themselves open to the law, according to the construction it has frequently received. There is a considerable difficulty, after all that has been written, in stating the extent of their designs; but I think we may assume, that a wide-spreading and formidable insurrection was for several months in agitation.[797] But the difficulties and hazards of the enterprise had already caused Lord Russell and Lord Essex to recede from the desperate counsels of Shaftesbury; and but for the unhappy detection of the conspiracy and the perfidy of Lord Howard, these two noble persons, whose lives were untimely lost to their country, might have survived to join the banner and support the throne of William. It is needless to observe that the minor plot, if we may use that epithet in reference to the relative dignity of the conspirators, for assassinating the king and the Duke of York, had no immediate connection with the schemes of Russell, Essex, and Sidney.[798]

But it is by no means a consequence from the admission we have made, that the evidence adduced on Lord Russell's trial was sufficient to justify his conviction.[799] It appears to me that Lord Howard, and perhaps Rumsey, were unwilling witnesses; and that the former, as is frequently the case with those who betray their friends in order to save their own lives, divulged no more than was extracted by his own danger. The testimony of neither witness, especially Howard, was given with any degree of that precision which is exacted in modern times; and, as we now read the trial, it is not probable that a jury in later ages would have found a verdict of guilty, or would have been advised to it by the court. But, on the other hand, if Lord Howard were really able to prove more than he did, which I much suspect, a better conducted examination would probably have elicited facts unfavourable to the prisoner, which at present do not appear. It may be doubtful whether any overt act of treason is distinctly proved against Lord Russell, except his concurrence in the project of a rising at Taunton, to which Rumsey deposes. But this depending on the oath of a single witness, could not be sufficient for a conviction.

Pemberton, chief justice of the common pleas, tried this illustrious prisoner with more humanity than was usually displayed on the bench; but, aware of his precarious tenure in office, he did not venture to check the counsel for the Crown, Sawyer and Jefferies, permitting them to give a great body of hearsay evidence, with only the feeble and useless remark that it did not affect the prisoner.[800] Yet he checked Lord Anglesea, when he offered similar evidence for the defence. In his direction to the jury, it deserves to be remarked that he by no means advanced the general proposition, which better men have held, that a conspiracy to levy war is in itself an overt act of compassing the king's death; limiting it to cases where the king's person might be put in danger, in the immediate instance, by the alleged scheme of seizing his guards.[801] His language indeed, as recorded in the printed trial, was such as might have produced a verdict of acquittal from a jury tolerably disposed towards the prisoner; but the sheriffs, North and Rich, who had been illegally thrust into office, being men wholly devoted to the prerogative, had taken care to return a panel in whom they could confide.[802]

The trial of Algernon Sidney, at which Jefferies, now raised to the post of chief justice of the king's bench, presided, is as familiar to all my readers as that of Lord Russell.[803] Their names have been always united in grateful veneration and sympathy. It is notorious that Sidney's conviction was obtained by a most illegal distortion of the evidence. Besides Lord Howard, no living witness could be produced to the conspiracy for an insurrection; and though Jefferies permitted two others to prepossess the jury by a second-hand story, he was compelled to admit that their testimony could not directly affect the prisoner.[804] The attorney-general therefore had recourse to a paper found in his house, which was given in evidence, either as an overt act of treason by its own nature, or as connected with the alleged conspiracy; for though it was only in the latter sense that it could be admissible at all, yet Jefferies took care to insinuate, in his charge to the jury, that the doctrines it contained were treasonable in themselves, and without reference to other evidence. In regard to truth, and to that justice which cannot be denied to the worst men in their worst actions, I must observe that the common accusation against the court in this trial, of having admitted insufficient proof by the mere comparison of handwriting, though alleged, not only in most of our historians, but in the act of parliament reversing Sidney's attainder, does not appear to be well founded; the testimony to that fact, unless the printed trial is falsified in an extraordinary degree, being such as would be received at present.[805] We may allow also that the passages from this paper, as laid in the indictment, containing very strong assertions of the right of the people to depose an unworthy king, might by possibility, if connected by other evidence with the conspiracy itself, have been admissible as presumptions for the jury to consider whether they had been written in furtherance of that design. But when they came to be read on the trial with their context, though only with such parts of that as the attorney-general chose to produce out of a voluminous manuscript, it was clear that they belonged to a theoretical work on government, long since perhaps written, and incapable of any bearing upon the other evidence.[806]

The manifest iniquity of this sentence upon Algernon Sidney, as well as the high courage he displayed throughout these last scenes of his life, have inspired a sort of enthusiasm for his name, which neither what we know of his story, nor the opinion of his contemporaries seem altogether to warrant. The crown of martyrdom should be suffered perhaps to exalt every virtue, and efface every defect in patriots, as it has often done in saints. In the faithful mirror of history, Sidney may lose something of this lustre. He possessed no doubt a powerful, active, and undaunted mind, stored with extensive reading on the topics in which he delighted. But having proposed one only object for his political conduct, the establishment of a republic in England, his pride and inflexibility, though they gave a dignity to his character, rendered his views narrow and his temper unaccommodating. It was evident to every reasonable man that a republican government, being adverse to the prepossessions of a great majority of the people, could only be brought about and maintained by the force of usurpation. Yet for this idol of his speculative hours, he was content to sacrifice the liberties of Europe, to plunge the country in civil war, and even to stand indebted to France for protection. He may justly be suspected of having been the chief promoter of the dangerous cabals with Barillon; nor could any tool of Charles's court be more sedulous in representing the aggressions of Louis XIV. in the Netherlands as indifferent to our honour and safety.

Sir Thomas Armstrong, who had fled to Holland on the detection of the plot, was given up by the States. A sentence of outlawry, which had passed against him in his absence, is equivalent, in cases of treason, to a conviction of the crime. But the law allows the space of one year, during which the party may surrender himself to take his trial. Armstrong, when brought before the court, insisted on this right, and demanded a trial. Nothing could be more evident, in point of law, than that he was entitled to it. But Jefferies, with inhuman rudeness, treated his claim as wholly unfounded, and would not even suffer counsel to be heard in his behalf. He was executed accordingly without trial.[807] But it would be too prolix to recapitulate all the instances of brutal injustice, or of cowardly subserviency, which degraded the English lawyers of the Stuart period, and never so infamously as in these last years of Charles II. From this prostitution of the tribunals, from the intermission of parliaments, and the steps taken to render them in future mere puppets of the Crown, it was plain that all constitutional securities were at least in abeyance; and those who felt themselves most obnoxious, or whose spirit was too high to live in an enslaved country, retired to Holland as an asylum in which they might wait the occasion of better prospects, or, at the worst, breathe an air of liberty.

Meanwhile the prejudice against the whig party, which had reached so great a height in 1681, was still farther enhanced by the detection of the late conspiracy. The atrocious scheme of assassination, alleged against Walcot and some others who had suffered, was blended by the arts of the court and clergy, and by the blundering credulity of the gentry, with those less heinous projects ascribed to Lord Russell and his associates.[808] These projects, if true in their full extent, were indeed such as men honestly attached to the government of their country could not fail to disapprove. For this purpose, a declaration full of malicious insinuations was ordered to be read in all churches.[809] It was generally commented upon, we may make no question, in one of those loyal discourses, which, trampling on all truth, charity, and moderation, had no other scope than to inflame the hearers against nonconforming protestants, and to throw obloquy on the constitutional privileges of the subject.

_High tory principles of the clergy._--It is not my intention to censure, in any strong sense of the word, the Anglican clergy at this time for their assertion of absolute non-resistance, so far as it was done without calumny and insolence towards those of another way of thinking, and without self-interested adulation of the ruling power. Their error was very dangerous, and had nearly proved destructive of the whole constitution; but it was one which had come down with high recommendation, and of which they could only perhaps be undeceived, as men are best undeceived of most errors, by experience that it might hurt themselves. It was the tenet of their homilies, their canons, their most distinguished divines and casuists; it had the apparent sanction of the legislature in a statute of the present reign. Many excellent men, as was shown after the revolution, who had never made use of this doctrine as an engine of faction or private interest, could not disentangle their minds from the arguments or the authority on which it rested. But by too great a number it was eagerly brought forward to serve the purposes of arbitrary power, or at best to fix the wavering protestantism of the court by professions of unimpeachable loyalty. To this motive, in fact, we may trace a good deal of the vehemence with which the non-resisting principle had been originally advanced by the church of England under the Tudors, and was continually urged under the Stuarts. If we look at the tracts and sermons published by both parties after the restoration, it will appear manifest that the Romish and Anglican churches bade, as it were, against each other for the favour of the two royal brothers. The one appealed to its acknowledged principles, while it denounced the pretensions of the holy see to release subjects from their allegiance, and the bold theories of popular government which Mariana and some other Jesuits had promulgated. The others retaliated on the first movers of the reformation, and expatiated on the usurpation of Lady Jane Grey, not to say Elizabeth, and the republicanism of Knox or Calvin.

_Passive obedience._--From the æra of the exclusion bill especially, to the death of Charles II., a number of books were published in favour of an indefeasible hereditary right of the Crown, and of absolute non-resistance. These were however of two very different classes. The authors of the first, who were perhaps the more numerous, did not deny the legal limitations of monarchy. They admitted that no one was bound to concur in the execution of unlawful commands. Hence the obedience they deemed indispensable was denominated passive; an epithet which, in modern usage, is little more than redundant, but at that time made a sensible distinction. If all men should confine themselves to this line of duty, and merely refuse to become the instruments of such unlawful commands, it was evident that no tyranny could be carried into effect. If some should be wicked enough to co-operate against the liberties of their country, it would still be the bounden obligation of Christians to submit. Of this, which may be reckoned the moderate party, the most eminent were Hickes in a treatise called "Jovian," and Sherlock in his case of resistance to the supreme powers.[810] To this also must have belonged Archbishop Sancroft, and the great body of non-juring clergy who had refused to read the declaration of indulgence under James II., and whose conduct in that respect would be utterly absurd, except on the supposition that there existed some lawful boundaries of the royal authority.

_Some contend for absolute-power._--But besides these men, who kept some measures with the constitution, even while, by their slavish tenets, they laid it open to the assaults of more intrepid enemies, another and a pretty considerable class of writers did not hesitate to avow their abhorrence of all limitations upon arbitrary power. Brady went back to the primary sources of our history, and endeavoured to show that Magna Charta, as well as every other constitutional law, were but rebellious encroachments on the ancient uncontrollable imprescriptible prerogatives of the monarchy. His writings, replete with learning and acuteness, and in some respects with just remarks, though often unfair and always partial, naturally produced an effect on those who had been accustomed to value the constitution rather for its presumed antiquity, than its real excellence. But the author most in vogue with the partisans of despotism was Sir Robert Filmer. He had lived before the civil war, but his posthumous writings came to light about this period. They contain an elaborate vindication of what was called the patriarchal scheme of government, which, rejecting with scorn that original contract whence human society had been supposed to spring, derives all legitimate authority from that of primogeniture, the next heir being king by divine right, and as incapable of being restrained in his sovereignty, as of being excluded from it. "As kingly power," he says, "is by the law of God, so hath it no inferior power to limit it. The father of a family governs by no other law than his own will, not by the laws and wills of his sons and servants."[811] "The direction of the law is but like the advice and direction which the king's council gives the king, which no man says is a law to the king."[812] "General laws," he observes, "made in parliament, may, upon known respects to the king, by his authority be mitigated or suspended upon causes only known to him; and by the coronation oath, he is only bound to observe good laws, of which he is the judge."[813] "A man is bound to obey the king's command against law, nay, in some cases, against divine laws."[814] In another treatise, entitled "The Anarchy of a Mixed or Limited Monarchy," he inveighs, with no kind of reserve or exception, against the regular constitution; setting off with an assumption that the parliament of England was originally but an imitation of the States General of France, which had no further power than to present requests to the king.[815]

These treatises of Filmer obtained a very favourable reception. We find the patriarchal origin of government frequently mentioned in the publications of this time as an undoubted truth. Considered with respect to his celebrity rather than his talents, he was not, as some might imagine, too ignoble an adversary for Locke to have combated. Another person, far superior to Filmer in political eminence, undertook at the same time an unequivocal defence of absolute monarchy. This was Sir George Mackenzie, the famous lord advocate of Scotland. In his "Jus Regium," published in 1684, and dedicated to the university of Oxford, he maintains, that "monarchy in its nature is absolute, and consequently these pretended limitations are against the nature of monarchy."[816] "Whatever proves monarchy to be an excellent government, does by the same reason prove absolute monarchy to be the best government; for if monarchy be to be commended, because it prevents divisions, then a limited monarchy, which allows the people a share, is not to be commended, because it occasions them; if monarchy be commended, because there is more expedition, secrecy, and other excellent qualities to be found in it, then absolute monarchy is to be commended above a limited one, because a limited monarch must impart his secrets to the people, and must delay the noblest designs, until malicious and factious spirits be either gained or overcome; and the same analogy of reason will hold in reflecting upon all other advantages of monarchy, the examination whereof I dare trust to every man's own bosom."[817] We can hardly, after this, avoid being astonished at the effrontery even of a Scots crown lawyer, when we read in the preface to this very treatise of Mackenzie, "Under whom can we expect to be free from arbitrary government, when we were and are afraid of it under King Charles I. and King Charles II.?"

_Decree of the university of Oxford._--It was at this time that the university of Oxford published their celebrated decree against pernicious books and damnable doctrines, enumerating as such above twenty propositions which they anathematised as false, seditious, and impious. The first of these is, that all civil authority is derived originally from the people; the second, that there is a compact, tacit or express, between the king and his subjects: and others follow of the same description. They do not explicitly condemn a limited monarchy, like Filmer, but evidently adopt his scheme of primogenitary right, which is incompatible with it. Nor is there the slightest intimation that the university extended their censure to such praises of despotic power as have been quoted in the last pages.[818] This decree was publicly burned by an order of the House of Lords in 1709: nor does there seem to have been a single dissent in that body to a step that cast such a stigma on the university. But the disgrace of the offence was greater than that of the punishment.

We can frame no adequate conception of the jeopardy in which our liberties stood under the Stuarts, especially in this particular period, without attending to this spirit of servility which had been so sedulously excited. It seemed as if England was about to play the scene which Denmark had not long since exhibited, by a spontaneous surrender of its constitution. And although this loyalty were much more on the tongue than in the heart, as the next reign very amply disclosed, it served at least to deceive the court into a belief that its future steps would be almost without difficulty. It is uncertain whether Charles would have summoned another parliament. He either had the intention, or professed it in order to obtain money from France, of convoking one at Cambridge in the autumn of 1681.[819] But after the scheme of new-modelling corporations began to be tried, it was his policy to wait the effects of this regeneration. It was better still, in his judgment, to dispense with the Commons altogether. The period fixed by law had elapsed nearly twelve months before his death; and we have no evidence that a new parliament was in contemplation. But Louis, on the other hand, having discontinued his annual subsidy to the king in 1684, after gaining Strasburg and Luxemburg by his connivance, or rather co-operation,[820] it would not have been easy to avoid a recurrence to the only lawful source of revenue. The King of France, it should be observed, behaved towards Charles as men usually treat the low tools by whose corruption they have obtained any end. During the whole course of their long negotiations, Louis, though never the dupe of our wretched monarch, was compelled to endure his shuffling evasions, and pay dearly for his base compliances. But when he saw himself no longer in need of them, it seems to have been in revenge that he permitted the publication of the secret treaty of 1670, and withdrew his pecuniary aid. Charles deeply resented both these marks of desertion in his ally. In addition to them he discovered the intrigues of the French ambassadors with his malcontent Commons. He perceived also that by bringing home the Duke of York from Scotland, and restoring him in defiance of the test act to the privy council, he had made the presumptive heir of the throne, possessed as he was of superior steadiness and attention, too near a rival to himself. These reflections appear to have depressed his mind in the latter months of his life, and to have produced that remarkable private reconciliation with the Duke of Monmouth, through the influence of Lord Halifax; which, had he lived, would very probably have displayed one more revolution in the uncertain policy of this reign.[821] But a death, so sudden and inopportune as to excite suspicions of poison in some most nearly connected with him, gave a more decisive character to the system of government.[822]

THE TEMPLE PRESS, PRINTERS, LETCHWORTH

FOOTNOTES:

[696] Temple's _Memoirs_.

[697] Burnet says that Danby bribed the less important members, instead of the leaders; which did not answer so well. But he seems to have been liberal to all. The parliament has gained the name of the pensioned. In that of 1679, Sir Stephen Fox was called upon to produce an account of the monies paid to many of their predecessors. Those who belonged to the new parliament, endeavoured to defend themselves; and gave reasons for their pensions; but I observe no one says he did not always vote with the court. _Parl. Hist._ 1137. North admits that great clamour was excited by this discovery; and well it might. See also Dalrymple, ii. 92.

[698] Burnet charges these two leaders of opposition with being bribed by the court to draw the house into granting an enormous supply, as the consideration of passing the test act; and see Pepys, Oct. 6, 1666. Sir Robert Howard and Sir Richard Temple were said to have gone over to the court in 1670 through similar inducements. Ralph. Roger North (_Examen_, p. 456) gives an account of the manner in which men were brought off from the opposition, though it was sometimes advisable to let them nominally continue in it; and mentions Lee, Garraway, and Meres, all very active patriots, if we trust to the parliamentary debates. But, after all, neither Burnet nor Roger North are wholly to be relied on as to particular instances; though the general fact of an extensive corruption be indisputable.

[699] This cunning, self-interested man, who had been introduced to the house by Lord Russell and Lord Cavendish, and was connected with the country party, tells us that Danby sent for him in Feb. 1677, and assured him that the jealousies of that party were wholly without foundation; that, to his certain knowledge, the king meant no other than to preserve the religion and government by law established; that, if the government was in any danger, it was from those who pretended such a mighty zeal for it. On finding him well disposed, Danby took his proselyte to the king, who assured him of his regard for the constitution, and was right loyally believed. Reresby's _Memoirs_, p. 36.

[700] "There were two things," says Bishop Parker, "which, like Circe's cup, bewitched men and turned them into brutes; viz. popery and French interest. If men otherwise sober heard them once, it was sufficient to make them run mad. But, when those things were laid aside, their behaviour to his majesty was with a becoming modesty." P. 244. Whenever the court seemed to fall in with the national interests on the two points of France and popery, many of the country party voted with them, though more numerous than their own. Temple, p. 458. See too Reresby, p. 25 _et alibi_.

[701] The king, according to James himself, readily consented to the marriage of the princess, when it was first suggested in 1675; the difficulty was with her father. He gave at last a reluctant consent; and the offer was made by Lords Arlington and Ossory to the Prince of Orange, who received it coolly. _Life of James_, 501. When he came over to England in Oct. 1677, with the intention of effecting the match, the king and duke wished to defer it till the conclusion of the treaty then in negotiation at Nimeguen; but "the obstinacy of the prince, with the assistance of the treasurer, who from that time entered into the measures and interests of the prince, prevailed upon the flexibility of the king to let the marriage be first agreed and concluded."--P. 508.

[702] Kennet, p. 332; North's _Examen_, p. 61; Burnet. This test was covertly meant against the Romish party as well as more openly against the dissenters. _Life of James_, p. 499. Danby set himself up as the patron of the church party and old cavaliers against the two opposing religions; trusting that they were the stronger in the House of Commons. But the times were so changed that the same men had no longer the same principles, and the house would listen to no measures against nonconformists. He propitiated, however, the prelates, by renewing the persecution under the existing laws, which had been relaxed by the cabal ministry. Baxter, 156, 172; Kennet, 331; Neal, 698; _Somers Tracts_, vii. 336.

Meanwhile, schemes of comprehension were sometimes on foot; and the prelates affected to be desirous of bringing about an union; but Morley and Sheldon frustrated them all. Baxter, 156; Kennet, 326; Parker, 25. The bishops, however, were not uniformly intolerant. Croft, Bishop of Hereford, published, about 1675, a tract that made some noise, entitled "The Naked Truth," for the purpose of moderating differences. It is not written with extraordinary ability; but is very candid and well designed, though conceding so much as to scandalise his brethren. _Somers Tracts_, vii. 268; _Biogr. Brit._ art. Croft; where the book is extravagantly over praised. Croft was one of the few bishops who, being then very old, advised his clergy to read James II.'s declaration in 1687; thinking, I suppose, though in those circumstances erroneously, that toleration was so good a thing, it was better to have it irregularly than not at all.

[703] Charles received 500,000 crowns for the long prorogation of parliament, from Nov. 1675 to Feb. 1677. In the beginning of the year 1676, the two kings bound themselves by a formal treaty (to which Danby and Lauderdale, but not Coventry or Williamson, were privy), not to enter on any treaties but by mutual consent; and Charles promised, in consideration of a pension, to prorogue or dissolve parliament, if they should attempt to force such treaties upon him. Dalrymple, p. 99. Danby tried to break this off, but did not hesitate to press the French cabinet for the money; and £200,000 was paid. The Prince of Orange came afterwards through Rouvigny to a knowledge of this secret treaty. P. 117.

[704] This army consisted of between twenty and thirty thousand men, as fine troops as could be seen (_Life of James_, p. 512): an alarming sight to those who denied the lawfulness of any standing army. It is impossible to doubt, from Barillon's correspondence in Dalrymple, that the king and duke looked to this force as the means of consolidating the royal authority. This was suspected at home, and very justly: "Many well-meaning men," says Reresby, "began to fear the army now raised was rather intended to awe our own kingdom than to war against France, as had at first been suggested."--P. 62. And in a former passage (p. 57) he positively attributes the opposition to the French war in 1678, to "a jealousy that the king indeed intended to raise an army, but never designed to go on with the war; and to say the truth, some of the king's own party were not very sure of the contrary."

[705] Dalrymple, p. 129. The immediate cause of those intrigues was the indignation of Louis at the Princess Mary's marriage. That event which, as we know from James himself, was very suddenly brought about, took the King of France by surprise. Charles apologised for it to Barillon, by saying, "I am the only one of my party, except my brother."--P. 125. This, in fact, was the secret of his apparent relinquishment of French interests at different times in the latter years of his reign; he found it hard to kick constantly against the pricks, and could employ no minister who went cordially along with his predilections. He seems too at times, as well as the Duke of York, to have been seriously provoked at the unceasing encroachments of France, which exposed him to so much vexation at home.

The connection with Lords Russell and Hollis began in March 1678, though some of the opposition had been making advances to Barillon in the preceding November. Pp. 129, 131. See also _Copies and Extracts of some Letters written to and from the Earl of Danby_, published in 1716; whence it appears that Montagu suspected the intrigues of Barillon, and the mission of Rouvigny, Lady Russell's first cousin, for the same purpose, as early as Jan. 1678; and informed Danby of it. Pp. 50, 53, 59.

[706] Courtin, the French ambassador who preceded Barillon, had been engaged through great part of the year 1677 in a treaty with Charles for the prorogation or dissolution of parliament. After a long chaffering, the sum was fixed at 2,000,000 livres; in consideration of which the King of England pledged himself to prorogue parliament from December to April 1678. It was in consequence of the subsidy being stopped by Louis, in resentment of the Princess Mary's marriage, that parliament, which had been already prorogued till April, was suddenly assembled in February. Dalrymple, p. 111. It appears that Courtin had employed French money to bribe members of the Commons in 1677 with the knowledge of Charles; assigning as a reason, that Spain and the emperor were distributing money on the other side. In the course of this negotiation, he assured Charles that the King of France was always ready to employ all his forces for the confirmation and augmentation of the royal authority in England, so that he should always be master of his subjects, and not depend upon them.

[707] See what Temple says of this (p. 460): the king raised 20,000 men in the spring of 1678, and seemed ready to go into the war; but all was spoiled by a vote, on Clarges's motion, that no money should be granted till satisfaction should be made as to religion. This irritated the king so much that he determined to take the money which France offered him; and he afterwards almost compelled the Dutch to sign the treaty; so much against the Prince of Orange's inclinations, that he has often been charged, though unjustly, with having fought the battle of St. Denis after he knew that the peace was concluded. Danby also, in his vindication (published in 1679, and again in 1710; see _State Trials_, ii. 634), lays the blame of discouraging the king from embarking in the war on this vote of the Commons. And the author of the _Life of James II._ says very truly, that the Commons "were in reality more jealous of the king's power than of the power of France; for, notwithstanding all their former warm addresses for hindering the growth of the power of France, when the king had no army, now that he had one, they passed a vote to have it immediately disbanded; and the factious party, which was then prevalent among them, made it their only business to be rid of the duke, to pull down the ministers, and to weaken the Crown."--P. 512.

In defence of the Commons it is to be urged that, if they had any strong suspicion of the king's private intrigues with France for some years past, as in all likelihood they had, common prudence would teach them to distrust his pretended desire for war with her; and it is, in fact, most probable, that his real object was to be master of a considerable army.

[708] The memorial of Blancard to the Prince of Orange, quoted by Dalrymple (p. 201) contains these words: "Le roi auroit été bien faché qu'il eut été absolu dans ses états; l'un de ses plus constants maximes depuis son rétablissement ayant été, de le diviser d'avec son parlement, et de se servir tantôt de l'un, tantôt de l'autre, toujours par argent pour parvenir à ses fins."

[709] Ralph, p. 116; _Oeuvres de Louis XIV._ ii. 204, and v. 67, where we have a curious and characteristic letter of the king to d'Estrades in Jan. 1662, when he had been provoked by some high language Clarendon had held about the right of the flag.

[710] The letters of Barillon in Dalrymple (pp. 134, 136, 140) are sufficient proofs of this. He imputes to Danby in one place (p. 142) the design of making the king absolute, and says: "M. le duc d'York se croit perdu pour sa religion, si l'occasion présente ne lui sert à soumettre l'Angleterre; c'est une entreprise fort hardie, et dont le succès est fort doutex." Of Charles himself he says: "Le roi d'Angleterre balance encore à se porter à l'extremité; son humeur répugne fort au dessein de changer le gouvernement. Il est néanmoins entrainé par M. le duc d'York et par le grand trésorier; mais dans le fond il aimeroit mieux que la paix le mît en état de demeurer en repos, et rétablir ses affaires, c'est à dire, un bon revenu; et je crois qu'il ne se soucie pas beaucoup d'être plus absolu qu'il est. Le duc et le trésorier connoissent bien à qui ils ont affaire, et craignent d'être abandonnés par le roi d'Angleterre aux premiers obstacles considérables qu'ils trouveront au dessein de relever l'autorité royale en Angleterre." On this passage it may be observed, that there is reason to believe there was no co-operation, but rather a great distrust at this time between the Duke of York and Lord Danby. But Barillon had no doubt taken care to infuse into the minds of the opposition those suspicions of that minister's designs.

[711] Barillon appears to have favoured the opposition rather than the Duke of York, who urged the keeping up of the army. This was also the great object of the king, who very reluctantly disbanded it in Jan. 1679. Dalrymple, 207, etc.

[712] This delicate subject is treated with great candour as well as judgment by Lord John Russell, in his _Life of William Lord Russell_.

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

[714] Louis XIV. tells us, that Sidney had made proposals to France in 1666 for an insurrection, and asked 100,000 crowns to effect it; which was thought too much for an experiment. He tried to persuade the ministers, that it was against the interest of France that England should continue a monarchy. _Oeuvres de Louis XIV._ ii. 204.

[715] Dalrymple, 162.

[716] His exclamation at Barillon's pressing the reduction of the army to 8000 men is well known: "God's fish! are all the King of France's promises to make me master of my subjects come to this! or does he think that a matter to be done with 8000 men!" Temple says, "He seemed at this time (May 1678) more resolved to enter into the war than I had ever before seen or thought him."

[717] Dalrymple, 178 _et post_.

[718] _Memoirs relating to the Impeachment of the Earl of Danby_, 1710, pp. 151, 227; _State Trials_, vol. xi.

[719] The violence of the next House of Commons, who refused to acquiesce in Danby's banishment, to which the Lords had changed their bill of attainder, may seem to render this very doubtful. But it is to be remembered that they were exasperated by the pardon he had clandestinely obtained, and pleaded in bar of their impeachment.

[720] The impeachment was carried by 179 to 116, Dec. 19. A motion (Dec. 21) to leave out the word traitorously was lost by 179 to 141.

[721] Lords' Journals, Dec. 26, 1678. Eighteen peers entered their protests; Halifax, Essex, Shaftesbury, etc.

[722] _State Trials_, vi. 351 _et post_; Hatsell's _Precedents_, iv. 176.

[723] Lords' Journals, April 16.

[724] "The lord privy seal, Anglesea, in a conference between the two houses," said, "that, in the transaction of this affair, were two great points gained by this House of Commons: the first was, that impeachments made by the Commons in one parliament continued from session to session, and parliament to parliament, notwithstanding prorogations or dissolutions: the other point was, that in cases of impeachments, upon special matter shown, if the modesty of the party directs him not to withdraw, the Lords admit that of right they ought to order him to withdraw, and that afterwards he ought to be committed. But he understood that the Lords did not intend to extend the points of withdrawing and committing to general impeachments without special matter alleged; else they did not know how many might be picked out of their house on a sudden."

Shaftesbury said, indecently enough, that they were as willing to be rid of the Earl of Danby as the Commons; and cavilled at the distinction between general and special impeachments. Commons' Journals, April 12, 1679. On the impeachment of Scroggs for treason, in the next parliament, it was moved to commit him; but the previous question was carried, and he was admitted to bail; doubtless because no sufficient matter was alleged. Twenty peers protested. Lords' Journals, Jan. 7, 1681.

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

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

[727] Lords' Journals, May 10 and 11. After the former vote 50 peers, out of 107 who appear to have been present, entered their dissent; and another, the Earl of Leicester, is known to have voted with the minority. The unusual strength of opposition, no doubt, produced the change next day.

[728] May 13. Twenty-one peers were entered as dissentient. The Commons inquired whether it were intended by this that the bishops should vote on the pardon of Danby, which the upper house declined to answer, but said they could not vote on the trial of the five popish lords, May 15, 17, 27.

[729] See the report of a committee in Journals, May 26; or Hatsell's _Precedents_, iv. 374.

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

[731] _Parl. Hist._ vii. 283. Mr. Lechmere, a very ardent whig, then solicitor-general, and one of the managers on the impeachment, had most confidently denied this prerogative. _Id._ 233.

[732] Instead of the words in the order, "from the proceedings of any other court," the following are inserted, "or any other business wherein their lordships act as in a court of judicature, and not in their legislative capacity." The importance of this alteration as to the question of impeachment is obvious.

[733] Lords' Journals.

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

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

[736] Lords' Journ. March 24, 1681. The very next day the Commons sent a message to demand judgment on the impeachment against him. Com. Journ. March 25.

[737] Shower's _Reports_, ii. 335. "He was bailed to appear at the Lords' bar the first day of the then next parliament." The catholic lords were bailed the next day. This proves that the impeachment was not held to be at an end.

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

[739] Upon considering the proceedings in the House of Lords on this subject, Oct. 6 and 30, 1690, and especially the protest signed by eight peers on the latter day, there can be little doubt that their release had been chiefly grounded on the act of grace, and not on the abandonment of the impeachment.

[740] Bishop Parker is not wrong in saying that the House of Commons had so long accustomed themselves to strange fictions about popery, that, upon the first discovery of Oates's plot, they readily believed everything he said; for they had long expected whatever he declared. _Hist. sui temp._ p. 248 (of the translation).

[741] _Parl. Hist._ 1024, 1035; _State Trials_, vii. 1; Kennet, 327, 337, 351; North's _Examen_, 129, 177; Ralph, 386; Burnet, i. 555. Scroggs tried Coleman with much rudeness and partiality; but his summing up in reference to the famous passage in the letters is not deficient in acuteness. In fact, this not only convicted Coleman, but raised a general conviction of the truth of a plot--and a plot there was, though not Oates's.

[742] _Examen_, p. 196.

[743] R. v. Farwell and others; _State Trials_, viii. 1361. They were indicted for publishing some letters to prove that Godfrey had killed himself. They defended themselves by calling witnesses to prove the truth of the fact, which, though in a case of libel, Pemberton allowed. But their own witnesses proved that Godfrey's body had all the appearance of being strangled.

The Roman catholics gave out, at the time of Godfrey's death, that he had killed himself; and hurt their own cause by foolish lies. North's _Examen_, p. 200.

[744] It was deposed by a respectable witness, that Godfrey entertained apprehensions on account of what he had done as to the plot, and had said, "On my conscience, I believe I shall be the first martyr." _State Trials_, vii. 168. These little additional circumstances, which are suppressed by later historians, who speak of the plot as unfit to impose on any but the most bigoted fanatics, contributed to make up a body of presumptive and positive evidence, from which human relief is rarely withheld.

It is remarkable that the most acute and diligent historian we possess for those times, Ralph, does not in the slightest degree pretend to account for Godfrey's death; though, in his general reflections on the plot (p. 555) he relies too much on the assertions of North and l'Estrange.

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

[746] _State Trials_, vol. vii. _passim_. On the trial of Green, Berry, and Hill, for Godfrey's murder, part of the story for the prosecution was, that the body was brought to Hill's lodgings on the Saturday, and remained there till Monday. The prisoner called witnesses who lodged in the same house, to prove that it could not have been there without their knowledge. Wild, one of the judges, assuming, as usual, the truth of the story as beyond controversy, said it was very suspicious that they should see or hear nothing of it; and another, Dolben, told them it was well they were not indicted. _Id._ 199. Jones, summing up the evidence on Sir Thomas Gascoigne's trial at York (an aged catholic gentleman, most improbably accused of accession to the plot), says to the jury: "Gentlemen, you have the king's witness on his oath; he that testifies against him is barely on his word, and he is a papist" (_Id._ 1039): thus deriving an argument from an iniquitous rule, which, at that time, prevailed in our law, of refusing to hear the prisoner's witnesses upon oath. Gascoigne, however, was acquitted.

It would swell this note to an unwarrantable length, were I to extract so much of the trials as might fully exhibit all the instances of gross partiality in the conduct of the judges. I must, therefore, refer my readers to the volume itself, a standing monument of the necessity of the revolution; not only as it rendered the judges independent of the Crown, but as it brought forward those principles of equal and indifferent justice, which can never be expected to flourish but under the shadow of liberty.

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

[748] Roger North, whose long account of the popish plot is, as usual with him, a medley of truth and lies, acuteness and absurdity, represents his brother, the chief justice, as perfectly immaculate in the midst of this degradation of the bench. The _State Trials_, however, show that he was as partial and unjust towards the prisoners as any of the rest, till the government thought it necessary to interfere. The moment when the judges veered round, was on the trial of Sir George Wakeman, physician to the queen. Scroggs, who had been infamously partial against the prisoners upon every former occasion, now treated Oates and Bedloe as they deserved, though to the aggravation of his own disgrace. _State Trials_, vii. 619-686.

[749] _State Trials_, 1552; _Parl. Hist._ 1229. Stafford, though not a man of much ability, had rendered himself obnoxious as a prominent opposer of all measures intended to check the growth of popery. His name appears constantly in protests upon such occasions; as, for instance, March 3, 1678, against the bill for raising money for a French war. Reresby praises his defence very highly. P. 108. The Duke of York, on the contrary, or his biographer, observes: "Those who wished Lord Stafford well were of opinion that, had he managed the advantages which were given him with dexterity, he would have made the greatest part of his judges ashamed to condemn him; but it was his misfortune to play his game worst, when he had the best cards."--P. 637.

[750] I take this from extracts out of those sermons, contained in a Roman catholic pamphlet printed in 1687, and entitled "Good Advice to the Pulpits." The protestant divines did their cause no good by misrepresentation of their adversaries, and by their propensity to rudeness and scurrility. The former fault indeed existed in a much greater degree on the opposite side, but by no means the latter. See also a treatise by Barlow, published in 1679, entitled, "Popish Principles pernicious to Protestant Princes."

[751] _Parl. Hist._ 1040.

[752] See Marvell's "Seasonable Argument to persuade all the grand Juries in England to petition for a new Parliament." He gives very bad characters of the principal members on the court side; but we cannot take for granted all that comes from so unscrupulous a libeller. Sir Harbottle Grimstone had first thrown out, in the session of 1675, that a standing parliament was as great a grievance as a standing army, and that an application ought to be made to the king for a dissolution. This was not seconded; and met with much disapprobation from both sides of the house. _Parl. Hist._ vii. 64. But the country party, in two years' time, had changed their views, and were become eager for a dissolution. An address to that effect was moved in the House of Lords, and lost by only two voices, the Duke of York voting for it. _Id._ 800. This is explained by a passage in Coleman's _Letters_; where that intriguer expresses his desire to see parliament dissolved, in the hope that another would be more favourable to the toleration of catholics. This must mean that the dissenters might gain an advantage over the rigorous church of England men, and be induced to come into a general indulgence.

[753] This test, 30 Car. 2, stat. 2, is the declaration subscribed by members of both houses of parliament on taking their seats, that there is no transubstantiation of the elements in the Lord's supper; and that the invocation of saints, as practised in the church of Rome, is idolatrous. The oath of supremacy was already taken by the Commons, though not by the Lords; and it is a great mistake to imagine that catholics were legally capable of sitting in the lower house before the act of 1679. But it had been the aim of the long parliament in 1642 to exclude them from the House of Lords; and this was of course revived with greater eagerness, as the danger from their influence grew more apparent. A bill for this purpose passed the Commons in 1675, but was thrown out by the peers. Journals, May 14, Nov. 8. It was brought in again in the spring of 1678. _Parl. Hist._ 990. In the autumn of the same year it was renewed, when the Lords agreed to the oath of supremacy, but omitted the declaration against transubstantiation, so far as their own house was affected by it. Lords' Journals, Nov. 20, 1678. They also excepted the Duke of York from the operation of the bill; which exception was carried in the Commons by two voices. _Parl. Hist._ 1040. The Duke of York and seven more lords protested.