Chapter XV: On the Reign of William III (5)

Of this sum £664,263 was incurred before the revolution, being a part of the money of which Charles II. had robbed the public creditor by shutting up the exchequer. Interest was paid upon this down to 1683, when the king stopped it. The legislature ought undoubtedly to have done justice more effectually and speedily than by passing an act in 1699, which was not to take effect till December 25, 1705; from which time the excise was charged with three per cent. interest on the principal sum of £1,328,526, subject to be redeemed by payment of a moiety. No compensation was given for the loss of so many years' interest. 12 & 13 W. 3, c. 12, § 15; Sinclair, i. 397; _State Trials_, xiv. 1 _et post_. According to a particular statement in _Somers Tracts_, xii. 383, the receipts of the exchequer, including loans, during the whole reign of William, amounted to rather more than £72,000,000. The author of the "Letter to the Rev. T. Carte," in answer to the latter's "Letter to a Bystander," estimates the sums raised under Charles II., from Christmas 1660 to Christmas 1684, at £46,233,923. Carte had made them only £32,474,265. But his estimate is evidently false and deceptive. Both reckon the gross produce, not the exchequer payments. This controversy was about the year 1742. According to Sinclair, _Hist. of Revenue_, i. 309, Carte had the last word; but I cannot conceive how he answered the above-mentioned letter to him. Whatever might be the relative expenditure of the two reigns, it is evident that the war of 1689 was brought on, in a great measure, by the corrupt policy of Charles II.

[199] Davenant, "Essay on Ways and Means." In another of his tracts (vol. ii. 266, edit. 1771) this writer computes the payments of the state in 1688 at one shilling in the pound of the national income; but after the war at two shillings and sixpence.

[200] Godfrey's "Short Account of Bank of England," in _Somers Tracts_, xi. 5; Kennet's _Complete Hist._ iii. 723; Ralph, 681; _Shrewsbury Papers_; Macpherson's _Annals of Commerce_, A.D. 1697; Sinclair's _Hist. of Revenue_.

[201] "Nor is it true that the sea was neglected; for I think during much the greater part of the war which began in 1689 we were entirely masters of the sea, by our victory in 1692, which was only three years after it broke out; so that for seven years we carried the _broom_. And for any neglect of our sea affairs otherwise, I believe, I may in a few words prove that all the princes since the Conquest never made so remarkable an improvement to our naval strength as King William. He (Swift) should have been told, if he did not know, what havoc the Dutch had made of our shipping in King Charles the Second's reign; and that his successor, King James the Second, had not in his whole navy, fitted out to defeat the designed invasion of the Prince of Orange, an individual ship of the first or second rank, which all lay neglected, and mere skeletons of former services, at their moorings. These this abused prince repaired at an immense charge, and brought them to their pristine magnificence." "Answer to Swift's Conduct of the Allies," in _Somers Tracts_, xiii. 247.

[202] Dalrymple has remarked the important consequences of this bold measure; but we have learned only by the publication of Lord Shrewsbury's _Correspondence_, that it originated with the king, and was carried through by him against the mutinous remonstrances of Russell. See pp. 68, 104, 202, 210, 234. This was a most odious man; as ill-tempered and violent as he was perfidious. But the rudeness with which the king was treated by some of his servants is very remarkable. Lord Sunderland wrote to him at least with great bluntness. _Hardwicke Papers_, 444.

[203] The peace of Ryswick was absolutely necessary, not only on account of the defection of the Duke of Savoy, and the manifest disadvantage with which the allies carried on the war, but because public credit in England was almost annihilated, and it was hardly possible to pay the army. The extreme distress for money is forcibly displayed in some of the king's letters to Lord Shrewsbury. P. 114, etc. These were in 1696, the very _nadir_ of English prosperity; from which, by the favour of Providence and the buoyant energies of the nation, we have, though not quite with an uniform motion, culminated to our present height (1824).

If the treaty could have been concluded on the basis originally laid down, it would even have been honourable. But the French rose in their terms during the negotiation; and through the selfishness of Austria obtained Strasburgh, which they had at first offered to relinquish, and were very near getting Luxemburg. _Shrewsbury Correspondence_, 316, etc. Still the terms were better than those offered in 1693, which William has been censured for refusing.

[204] Moyle now published his "Argument, showing that a standing army is inconsistent with a free government, and absolutely destructive to the constitution of the English monarchy" (_State Tracts_, ii. 564); and Trenchard his "History of Standing Armies in England." _Id._ 653. Other pamphlets of a similar description may be found in the same volume.

[205] Journals, 11th Dec. 1697; _Parl. Hist._ 1167.

[206] Journals, 21st Dec. 1697; _Parl. Hist._ v. 1168. It was carried by 225 to 86.

[207] "The elections fell generally," says Burnet, "on men who were in the interest of government; many of them had indeed some popular notions, which they had drank in under a bad government, and thought this ought to keep them under a good one; so that those who wished well to the public did apprehend great difficulties in managing them." Upon which Speaker Onslow has a very proper note: "They might happen to think," he says, "a good one might become a bad one, or a bad one might succeed to a good one. They were the best men of the age, and were for maintaining the revolution government by its own principles, and not by those of a government it had superseded." "The elections," we read in a letter of Mr. Montague, Aug. 1698, "have made a humour appear in the counties that is not very comfortable to us who are in business. But yet after all, the present members are such as will neither hurt England nor this government, but I believe they must be handled very nicely." _Shrewsbury Correspondence_, 551. This parliament, however, fell into a great mistake about the reduction of the army; as Bolingbroke in his _Letters on History_ very candidly admits, though connected with those who had voted for it.

[208] Journals, 17th Dec. 1698; _Parl. Hist._ 1191.

[209] Journals, 10th Jan., 18th, 20th, and 25th March; Lords' Journals, 8th Feb.; _Parl. Hist._ 1167, 1191; Ralph, 808; Burnet, 219. It is now beyond doubt that William had serious thoughts of quitting the government, and retiring to Holland, sick of the faction and ingratitude of this nation. _Shrewsbury Correspondence_, 571; _Hardwicke Papers_, 362. This was in his character, and not like the vulgar story which that retailer of all gossip, Dalrymple, calls a well-authenticated tradition, that the king walked furiously round his room, exclaiming, "If I had a son, by G-- the guards should not leave me." It would be vain to ask how this son would have enabled him to keep them against the bent of the parliament and people.

[210] The prodigality of William in grants to his favourites was an undeniable reproach to his reign. Charles II. had, however, with much greater profuseness, though much less blamed for it, given away almost all the Crown lands in a few years after the restoration; and the Commons could not now be prevailed upon to shake those grants, which was urged by the court, in order to defeat the resumption of those in the present reign. The length of time undoubtedly made a considerable difference. An enormous grant of the Crown's domanial rights in North Wales to the Earl of Portland excited much clamour in 1697, and produced a speech from Mr. Price, afterwards a baron of the exchequer, which was much extolled for its boldness, not rather to say, virulence and disaffection. This is printed in _Parl. Hist._ 978, and many other books. The king, on an address from the House of Commons, revoked the grant, which indeed was not justifiable. His answer on this occasion, it may here be remarked, was by its mildness and courtesy a striking contrast to the insolent rudeness with which the Stuarts, one and all, had invariably treated the house. Yet to this vomit were many wretches eager to return.

[211] _Parl. Hist._ 1171, 1202, etc.; Ralph; Burnet; _Shrewsbury Correspondence_. See also Davenant's "Essay on Grants and Resumptions," and sundry pamphlets in _Somers Tracts_, vol. ii., and _State Tracts_, temp. W. 3, vol. ii.

[212] In Feb. 1692.

[213] See the same authorities, especially the _Shrewsbury Letters_, p. 602.

[214] Commons' Journals, June 1, Aug. 12.

[215] _Id._ Nov. 1.

[216] _Parl. Hist._ 657; Dalrymple; Commons' and Lords' Journals.

[217] _Parl. Hist._ 793. Delaval and Killigrew were Jacobites, whom William generously but imprudently put into the command of the fleet.

[218] Commons' Journals, Feb. 27, 1694-5.

[219] _Parl. Hist._ 941; Burnet, 105.

[220] Burnet, 163; Commons' Journals, Jan. 31, 1695-6. An abjuration of King James's title in very strong terms was proposed as a qualification for members of this council; but this was lost by 195 to 188.

[221] See Speaker Onslow's Note on Burnet (Oxf. edit. iv. 468), and Lord Hardwicke's hint of his father's opinion. _Id._ 475. But see also Lord Somers's plea as to this. _State Trials_, xiii. 267.

[222] _Parl. Hist._; _State Trials_, xiv. 233. The letters of William, published in the _Hardwicke State Papers_, are both the most authentic and the most satisfactory explanation of his policy during the three momentous years that closed the seventeenth century. It is said, in a note of Lord Hardwicke on Burnet (Oxford edit. iv. 417), (from Lord Somers's papers), that when some of the ministers objected to parts of the treaty, Lord Portland's constant answer was, that nothing could be altered; upon which one of them said, if that was the case, he saw no reason why they should be called together. And it appears by the _Shrewsbury Papers_, p. 371, that the duke, though secretary of state, and in a manner prime minister, was entirely kept by the king out of the secret of the negotiations which ended in the peace of Ryswick: whether, after all, there remained some lurking distrust of his fidelity, or from whatever other cause this took place, it was very anomalous and unconstitutional. And it must be owned, that by this sort of proceeding, which could have no sufficient apology but a deep sense of the unworthiness of mankind, William brought on himself much of that dislike which appears so ungrateful and unaccountable.

As to the impeachments, few have pretended to justify them; even Ralph is half ashamed of the party he espouses with so little candour towards their adversaries. The scandalous conduct of the tories in screening the Earl of Jersey, while they impeached the whig lords, some of whom had really borne no part in a measure he had promoted, sufficiently displays the factiousness of their motives. See Lord Haversham's speech on this. _Parl. Hist._ 1298.

[223] Bishop Fleetwood, in a sermon, preached in 1703, says of William, "whom all the world of friends and enemies know how to value, except a _few English wretches_." Kennet, 840. Boyer, in his _History of the Reign of Queen Anne_, p. 12, says that the king spent most of his private fortune, computed at no less than two millions, in the service of the English nation. I should be glad to have found this vouched by better authority.

[224] Lords' Journals.

[225] _Parl. Hist._ 754.

[226] 6 W. & M. c. 2.

[227] _Rot. Parl._ ii. 239; 3 Inst. 1.

[228] 3 Inst. 12; 1 Hale's _Pleas of the Crown_, 120; Foster, 195. Coke lays it down positively (p. 14) that a conspiracy to levy war is not high treason, as an overt act of compassing the king's death. "For this were to confound the several classes or _membra dividentia_." Hale objects that Coke himself cites the case of Lords Essex and Southampton, which seems to contradict that opinion. But it may be answered, in the first place, that a conspiracy to levy war was made high treason during the life of Elizabeth; and secondly, that Coke's words as to that case are, that they "intended to go to the court where the queen was, and to have taken her into their power, and to have removed divers of her council, and _for that end did assemble a multitude of people_: this being raised to the end aforesaid, was a sufficient overt act of compassing the death of the queen." The earliest case is that of Storie, who was convicted of compassing the queen's death on evidence of exciting a foreign power to invade the kingdom. But he was very obnoxious; and the precedent is not good. Hale, 122.

It is also held that an actual levying war may be laid as an overt act of compassing the king's death, which indeed follows _à fortiori_ from the former proposition; provided it be not a constructive rebellion, but one really directed against the royal authority. Hale, 123.

[229] Hale, 121.

[230] Foster's _Discourse on High Treason_, 196; _State Trials_, xii. 646, 790, 818; xiii. 62 (Sir John Friend's case) _et alibi_. This important question having arisen on Lord Russell's trial, gave rise to a controversy between two eminent lawyers, Sir Bartholomew Shower and Sir Robert Atkins; the former maintaining, the latter denying, that a conspiracy to depose the king and to seize his guards was an overt act of compassing his death. _State Trials_, ix. 719, 818.

See also Phillipps's _State Trials_, ii. 39, 78; a work to which I might have referred in other places, and which shows the well known judgment and impartiality of the author.

[231] In the whole series of authorities, however, on this subject, it will be found that the probable danger to the king's safety from rebellion was the ground-work upon which this constructive treason rested; nor did either Hale or Foster, Pemberton or Holt, ever dream that any other death was intended by the statute than that of nature. It was reserved for a modern Crown lawyer to resolve this language into a metaphysical personification, and to argue that the king's person being interwoven with the state, and its sole representative, any conspiracy against the constitution must of its own nature be a conspiracy against his life. _State Trials_, xxiv. 1183.

[232] 13 Eliz. c. 1; 13 Car. 2, c. 1; 36 G. 3, c. 7.

[233] Hale, 123; Foster, 213.

[234] Lord George Gordon's case, _State Trials_, xxi. 649.

[235] Hardy's case. _Id._ xxiv. 208. The language of Chief Justice Eyre is sufficiently remarkable.

[236] Foster, 198. He seems to concur in Hale's opinion, that words which being spoken will not amount to an overt act to make good an indictment for compassing the king's death, yet if reduced into writing, and published, will make such an overt act, "if the matters contained in them import such a compassing." Hale's _Pleas of Crown_, 118. But this is indefinitely expressed, the words marked as a quotation looking like a truism, and contrary to the first part of the sentence; and the case of Williams, under James I., which Hales cites in corroboration of this, will hardly be approved by any constitutional lawyer.

[237] Hale, 134. It is observable that Hale himself, as chief baron, differed from the other judges in this case.

[238] This is the well known case of Damaree and Purchase. _State Trials_, xv. 520; Foster, 213. A rabble had attended Sacheverell from Westminster to his lodgings in the Temple. Some among them proposed to pull down the meeting-houses; a cry was raised, and several of these were destroyed. It appeared to be their intention to pull down all within their reach. Upon this overt act of levying war the prisoners were convicted; some of the judges differing as to one of them, but merely on the application of the evidence to his case. Notwithstanding this solemn decision, and the approbation with which Sir Michael Foster has stamped it, some difficulty would arise in distinguishing this case, as reported, from many indictments under the riot act for mere felony; and especially from those of the Birmingham rioters in 1791, where the similarity of motives, though the mischief in the latter instance was far more extensive, would naturally have suggested the same species of prosecution as was adopted against Damaree and Purchase. It may be remarked that neither of these men was executed; which, notwithstanding the sarcastic observation of Foster, might possibly be owing to an opinion, which every one but a lawyer must have entertained, that their offence did not amount to treason.

[239] 7 W. 3, c. 3, § 4; Foster, 257.

[240] Foster, 234.

[241] "Would you have trials secured?" says the author of the "Jacobite Principles Vindicated" (_Somers Tracts_, 10, 526). "It is the interest of all parties care should be taken about them, or all parties will suffer in their turns. Plunket, and Sidney, and Ashton were doubtless all murdered though they were never so guilty of the crimes wherewith they were charged; the one tried twice, the other found guilty upon one evidence, and the last upon nothing but presumptive proof." Even the prostitute lawyer, Sir Bartholomew Shower, had the assurance to complain of uncertainty in the law of treason. _Id._ 572. And Roger North, in his _Examen_, p. 411, labours hard to show that the evidence in Ashton's case was slighter than in Sidney's.

[242] _State Trials_, xii. 646.--See 668 and 799.

[243] _State Trials_, xii. 1245; Ralph, 420; _Somers Tracts_, x. 472. The Jacobites took a very frivolous objection to the conviction of Anderton, that printing could not be treason within the statute of Edward III., because it was not invented for a century afterwards. According to this rule, it could not be treason to shoot the king with a pistol or poison him with an American drug.

[244] _Parl. Hist._ v. 698.

[245] _Id._ v. 675.

[246] _Parl. Hist._ 712, 737; Commons' Journals, Feb. 8, 1695.

[247] _Id._ 965; Journal, 17th Feb. 1696; Stat. 7, W. 3 c. 3. Though the court opposed this bill, it was certainly favoured by the zealous whigs as much as by the opposite party.

[248] When several persons of distinction were arrested on account of a jacobite conspiracy in 1690, there was but one witness against some of them. The judges were consulted whether they could be indicted for a high misdemeanour on this single testimony, as Hampden had been in 1685; the attorney-general Treby maintaining this to be lawful. Four of the judges were positively against this, two more doubtfully the same way, one altogether doubtful, and three in favour of it. The scheme was very properly abandoned; and at present, I suppose, nothing can be more established than the negative. Dalrymple, Append. 186.

[249] _State Trials_, xii. 1051.

[250] The dexterity with which Lord Shaftesbury (the author of the _Characteristics_), at that time in the House of Commons, turned a momentary confusion which came upon him while speaking on this bill, into an argument for extending the aid of counsel to those who might so much more naturally be embarrassed on a trial for their lives, is well known. All well-informed writers ascribe this to Shaftesbury. But Johnson, in the _Lives of the Poets_, has, through inadvertence, as I believe, given Lord Halifax (Montagu) the credit of it; and some have since followed him. As a complete refutation of this mistake, it is sufficient to say that Mr. Montagu _opposed_ the bill. His name appears as a teller on two divisions, 31st Dec. 1691, and 18th Nov. 1692.

[251] It was said by Scroggs and Jefferies, that if one witness prove that A. bought a knife, and another that he intended to kill the king with it, these are two witnesses within the statute of Edward VI. But this has been justly reprobated.

[252] Upon some of the topics touched in the foregoing pages, besides Hale and Foster, see Luders' _Considerations on the Law of Treason in Levying War_, and many remarks in Phillipps's _State Trials_; besides much that is scattered through the notes of Mr. Howell's great collection. Mr. Phillipps' work, however, was not published till after my own was written.

[253] Commons' Journals, 9 Jan. and 11 Feb. 1694-5. A bill to the same effect sent down from the Lords was thrown out, 17 April 1695. Another bill was rejected on the second reading in 1697. _Id._ 3 April.

[254] _Somers Tracts_, passim. John Dunton the bookseller, in the _History of his Life and Errors_, hints that unlicensed books could be published by a douceur to Robert Stephens, the messenger of the press, whose business it was to inform against them.

[255] _State Trials_, xiv. 1103, 1128. Mr. Justice Powell told the Rev. Mr. Stephens, in passing sentence on him for a libel on Harley and Marlborough, that to traduce the queen's ministers was a reflection on the queen herself. It is said, however, that this and other prosecutions were generally blamed; for the public feeling was strong in favour of the liberty of the press. Boyer's _Reign of Queen Anne_, p. 286.

[256] Pemberton, as I have elsewhere observed, permitted evidence to be given as to the truth of an alleged libel in publishing that Sir Edmondbury Godfrey had murdered himself. And what may be reckoned more important, in a trial of the famous Fuller on a similar charge, Holt repeatedly (not less than five times) offered to let him prove the truth if he could. _State Trials_, xiv. 534. But, on the trial of Franklin, in 1731, for publishing a libel in the _Craftsman_, Lord Raymond positively refused to admit of any evidence to prove the matters to be true; and said he was only abiding by what had been formerly done in other cases of the like nature. _Id._ xvii. 659.

[257] See the pamphlets of that age, _passim_. One of these, entitled "The Zealous and Impartial Protestant," 1681, the author of which, though well known, I cannot recollect, after much invective, says, "Liberty of conscience and toleration are things only to be talked of and pretended to by those that are under; but none like or think it reasonable that are in authority. 'Tis an instrument of mischief and dissettlement, to be courted by those who would have change, but no way desirable by such as would be quiet, and have the government undisturbed. For it is not consistent with public peace and safety without a standing army; conventicles being eternal nurseries of sedition and rebellion."--P. 30. "To strive for toleration," he says in another place, "is to contend against all government. It will come to this; whether there should be a government in the church or not? for if there be a government, there must be laws; if there be laws, there must be penalties annexed to the violation of those laws; otherwise the government is precarious and at every man's mercy; that is, it is none at all.... The constitution should be made firm, whether with any alterations or without them, and laws put in punctual vigorous execution. Till that is done all will signify nothing. The church hath lost all through remissness and non-execution of laws; and by the contrary course things must be reduced, or they never will. To what purpose are parliaments so concerned to prepare good laws, if the officers who are intrusted with the execution neglect that duty, and let them lie dead? This brings laws and government into contempt, and it were much better the laws were never made; by these the dissenters are provoked, and being not restrained by the exacting of the penalties, they are fiercer and more bent upon their own ways than they would be otherwise. But it may be said the execution of laws of conformity raiseth the cry of persecution; and will not that be scandalous? Not so scandalous as anarchy, schism, and eternal divisions and confusions both in church and state. Better that the unruly should clamour than that the regular should groan, and all should be undone."--P. 33. Another tract, "Short Defence of the Church and Clergy of England, 1679," declares for union (in his own way), but against a comprehension, and still more a toleration. "It is observable that whereas the best emperors have made the severest laws against all manner of sectaries, Julian the apostate, the most subtle and bitter enemy that Christianity ever had, was the man that set up this way of toleration."--P. 87. Such was the temper of this odious faction. And at the time they were instigating the government to fresh severities, by which, I sincerely believe, they meant the pillory or the gallows (for nothing else was wanting), scarce a gaol in England was without nonconformist ministers. One can hardly avoid rejoicing that some of these men, after the revolution, experienced, not indeed the persecution, but the poverty they had been so eager to inflict on others.

The following passage from a very judicious tract on the other side, "Discourse of the Religion of England, 1667," may deserve to be extracted. "Whether cogent reason speaks for this latitude, be it now considered. How momentous in the balance of this nation those protestants are which are dissatisfied in the present ecclesiastical polity. They are everywhere spread through city and country; they make no small part of all ranks and sorts of men; by relations and commerce they are so woven into the nation's interest, that it is not easy to sever them without unravelling the whole. They are not excluded from the nobility, among the gentry they are not a few; but none are of more importance than they in the trading part of the people and those that live by industry, upon whose hands the business of the nation lies much. It hath been noted that some who bear them no good will have said that the very air of corporations is infested with their contagion. And in whatsoever degree they are high or low, ordinarily for good understanding, steadiness and sobriety, they are not inferior to others of the same rank and quality; neither do they want the rational courage of Englishmen."--P. 23.

[258] _Parl. Hist._ iv. 1311; Ralph, 559.

[259] Baxter; Neal; Palmer's _Nonconformist's Memorial_.

[260] _Parl. Hist._ v. 263. Some of the tories wished to pass it only for seven years. The high-church pamphlets of the age grumble at the toleration.

[261] Burnet; _Parl. Hist._ 184.

[262] _Parl. Hist._ 196.

[263] _Id._ 212, 216.

[264] Burnet; Ralph. But a better account of what took place in the convocation and among the commissioners will be found in Kennet's _Compl. Hist._ 557, 588, etc.

[265] Leslie's _Case of the Regale and Pontificate_ is a long dull attempt to set up the sacerdotal order above all civil power, at least as to the exercise of its functions, and especially to get rid of the appointment of bishops by the Crown, or, by parity of reasoning, of priests by laymen. He is indignant even at laymen choosing their chaplains, and thinks they ought to take them from the bishop; objecting also to the phrase, my chaplain, as if they were servants: "otherwise the expression is proper enough to say my chaplain, as I say my parish priest, my bishop, my king, or my God; which argues my being under their care and direction, and that I belong to them, not they to me."--P. 182. It is full of enormous misrepresentation as to the English law.

[266] See Burnet (Oxf. iv. 409) and Lord Dartmouth's note.

[267] No opposition seems to have been made in the House of Commons; but we have a protest from four peers against it. Burnet, though he offers some shameful arguments in favour of the bill, such as might justify any tyranny, admits that it contained some unreasonable severities, and that many were really adverse to it. A bill proposed in 1705, to render the late act against papists effective, was lost by 119 to 43 (_Parl. Hist._ vi. 514); which shows that men were ashamed of what they had done. A proclamation, however, was issued in 1711, immediately after Guiscard's attempt to kill Mr. Harley, for enforcing the penal laws against Roman catholics, which was very scandalous, as tending to impute that crime to them. Boyer's _Reign of Anne_, p. 429. And in the reign of Geo. I. (1722) £100,000 was levied by a particular act on the estates of papists and non-jurors. This was only carried by 188 to 172; Sir Joseph Jekyll and Mr. Onslow, afterwards speaker, opposing it, as well as Lord Cowper in the other house. 9 G. I. c. 18; _Parl. Hist._ viii. 51, 353. It was quite impossible that those who sincerely maintained the principles of toleration should long continue to make any exception; though the exception in this instance was wholly on political grounds, and not out of bigotry, it did not the less contravene all that Taylor and Locke had taught men to cherish.

[268] 11 & 12 W. 3, c. 4. It is hardly necessary to add, that this act was repealed in 1779.

[269] Butler's _Memoirs of Catholics_, ii. 64.

[270] While the bill regulating the succession was in the House of Commons, a proviso was offered by Mr. Godolphin, that nothing in this act is intended to be drawn into example or consequence hereafter, to prejudice the right of any protestant prince or princess in their hereditary succession to the imperial crown of those realms. This was much opposed by the whigs; both because it tended to let in the son of James II., if he should become a protestant, and for a more secret reason, that they did not like to recognise the continuance of any hereditary right. It was rejected by 179 to 125. _Parl. Hist._ v. 249. The Lords' amendment in favour of the Princess Sophia was lost without a division. _Id._ 339.

[271] The Duchess of Savoy put in a very foolish protest against anything that should be done to prejudice _her_ right. Ralph, 924.

[272] 12 & 13 w. 3, c. 2.

[273] It was frequently contended in the reign of George II. that subsidiary treaties for the defence of Hanover, or rather such as were covertly designed for that and no other purpose, as those with Russia and Hesse Cassel in 1755, were at least contrary to the spirit of the act of settlement. On the other hand it was justly answered that, although in case Hanover should be attacked on the ground of a German quarrel, unconnected with English politics, we were not bound to defend her; yet, if a power at war with England should think fit to consider that electorate as part of the king's dominions (which perhaps according to the law of nations might be done), our honour must require that it should be defended against such an attack. This is true; and yet it shows very forcibly that the separation of the two ought to have been insisted upon; since the present connection engages Great Britain in a very disadvantageous mode of carrying on its wars, without any compensation of national wealth or honour; except indeed that of employing occasionally in its service a very brave and efficient body of troops.

[274] 1 G. 1, c. 51.

[275] _Life of Clarendon_, 319.

[276] "The method is this," says a member in debate; "things are concerted in the cabinet, and then brought to the council; such a thing is resolved in the cabinet, and brought and put on them for their assent, without showing any of the reasons. That has not been the method of England. If this method be, you will never know who gives advice." _Parl. Hist._ v. 731.

In Sir Humphrey Mackworth's [or perhaps Mr. Harley's] "Vindication of the Rights of the Commons of England, 1701," _Somers Tracts_, xi. 276, the constitutional doctrine is thus laid down, according to the spirit of the recent act of settlement. "As to the setting of the great seal of England to foreign alliances, the lord chancellor, or lord keeper for the time being, has a plain rule to follow; that is, humbly to inform the king that he cannot legally set the great seal of England to a matter of that consequence unless the same be first debated and resolved in council; which method being observed, the chancellor is safe, and the council answerable."--P. 293.

[277] This very delicate question as to the responsibility of the cabinet, or what is commonly called the ministry _in solidum_, if I may use the expression, was canvassed in a remarkable discussion within our memory, on the introduction of the late chief justice of the King's Bench into that select body; Mr. Fox strenuously denying the proposition, and Lord Castlereagh, with others now living, maintaining it. _Parl. Debates_, A.D. 1806. I cannot possibly comprehend how an article of impeachment, for sitting as a cabinet minister could be drawn; nor do I conceive that a privy counsellor has a right to resign his place at the board; so that it would be highly unjust and illegal to presume a participation in culpable measures from the mere circumstance of belonging to it. Even if notoriety be a ground, as has been sometimes contended, for impeachment, it cannot be sufficient for conviction.

[278] Anne, c. 8; 6 Anne, c. 7.

[279] This is the modern usage, but of its origin I cannot speak. On one remarkable occasion, while Anne was at the point of death, the Dukes of Somerset and Argyle went down to the council-chamber without summons to take their seats; but it seems to have been intended as an unexpected manœuvre of policy.

[280] It is provided by 1 G. 1, st. 2, c. 4, that no bill of naturalisation shall be received without a clause disqualifying the party from sitting in parliament, etc., "for the better preserving the said clause in the said act entire and inviolate." This provision, which is rather supererogatory, was of course intended to show the determination of parliament not to be governed, ostensibly at least, by foreigners under their foreign master.

[281] _Parl. Hist._ 807, 840. Burnet says (p. 42) that Sir John Trevor, a tory, first put the king on this method of corruption. Trevor himself was so venal that he received a present of 1000 guineas from the city of London, being then speaker of the Commons, for his service in carrying a bill through the house; and, upon its discovery, was obliged to put the vote, that he had been guilty of a high crime and misdemeanour. This resolution being carried, he absented himself from the house, and was expelled. _Parl. Hist._ 900; Commons' Journals, 12th March 1694-5. The Duke of Leeds, that veteran of secret iniquity, was discovered about the same time to have taken bribes from the East India Company, and was impeached in consequence; I say discovered, for there seems little or no doubt of his guilt. The impeachment, however, was not prosecuted for want of evidence. _Parl. Hist._ 881, 911, 933. Guy, secretary of the treasury, another of Charles II.'s court, was expelled the house on a similar imputation. _Id._ 886. Lord Falkland was sent to the Tower for begging £2000 of the king. _Id._ 841. A system of infamous peculation among the officers of government came to light through the inquisitive spirit of parliament in this reign; not that the nation was worse and more corrupt than under the Stuarts, but that a profligacy, which had been engendered and had flourished under their administration, was now dragged to light and punishment. Long sessions of parliament and a vigilant party-spirit exposed the evil, and have finally in a great measure removed it; though Burnet's remark is still not wholly obsolete. "The regard," says that honest bishop, "that is shown to the members of parliament among us, makes that few abuses can be inquired into or discovered."

[282] _Parl. Hist._ 748, 829. The house resolved, "that whoever advised the king not to give the royal assent to the act touching free and impartial proceedings in parliament, which was to redress a grievance, and take off a scandal upon the proceedings of the Commons in parliament, is an enemy to their majesties and the kingdom." They laid a representation before the king, showing how few instances have been in former reigns of denying the royal assent to bills for redress of grievances, and the great grief of the Commons "for his not having given the royal assent to several public bills, and particularly the bill touching free and impartial proceedings in parliament, which tended so much to the clearing the reputation of this house, after their having so freely voted to supply the public occasions." The king gave a courteous but evasive answer, as indeed it was natural to expect; but so great a flame was raised in the Commons, that it was moved to address him for a further answer, which, however, there was still a sense of decorum sufficient to prevent.

Though the particular provisions of this bill do not appear, I think it probable that it went too far in excluding military as well as civil officers.

[283] 4 & 5 W. & M. c. 21.

[284] 11 & 12 W. 3, c. 2, § 50.

[285] The House of Commons introduced into the act of security, as it was called, a long clause, carried on a division by 167 to 160, Jan. 24, 1706, enumerating various persons who should be eligible to parliament; the principal officers of state, the commissioners of treasury and admiralty, and a limited number of other placemen. The Lords thought fit to repeal the whole prohibitory enactment. It was resolved in the Commons, by a majority of 205 to 183, that they would not agree to this amendment. A conference accordingly took place, when the managers of the Commons objected (Feb. 7) that a total repeal of that provision would admit such an unlimited number of officers to sit in their house, as might destroy the free and impartial proceedings in parliament, and endanger the liberties of the Commons of England. Those on the Lords' side gave their reasons to the contrary at great length, Feb. 11. The Commons determined (Feb. 18) to insert the provision vacating the seat of a member accepting office; and resolved not to insist on their disagreements as to the main clause. Three protests were entered in the House of Lords against inserting the word "repealed" in reference to the prohibitory clause, instead of "regulated and altered," all by tory peers. It is observable that, as the provision was not to take effect till the house of Hanover should succeed to the throne, the sticklers for it might be full as much influenced by their ill-will to that family as by their zeal for liberty.

[286] 4 Anne, c. 8; 6 Anne, c. 7.

[287] Burnet, 86. It was represented to the king, he says, by some of the judges themselves, that it was not fit they should be out of all dependence on the court.

[288] It was originally resolved that they should be removable on the address of either house, which was changed afterwards to both houses. Comm. Journ. 12th March, and 10th May.

[289] It was proposed in the Lords, as a clause in the bill of rights, that pardons upon an impeachment should be void, but lost by 50 to 17; on which twelve peers, all whigs, entered a protest. _Parl. Hist._ 482.

[290] 13 W. 3, c. 3. The Lords introduced an amendment into this bill, to attaint also Mary of Este, the late queen of James II. But the Commons disagreed on the ground that it might be of dangerous consequence to attaint any one by an amendment, in which case such due consideration cannot be had, as the nature of an attainder requires. The Lords, after a conference, gave way; but brought in a separate bill to attaint Mary of Este, which passed with a protest of the tory peers. Lords' Journals, Feb. 6, 12, 20, 1701-2.

[291] 13 W. 3, c. 6.

[292] Sixteen lords, including two bishops, Compton and Sprat, protested against the bill containing the abjuration oath. The first reason of their votes was afterwards expunged from the Journals by order of the house. Lords' Journals, 24th Feb., 3rd March 1701-2.

[293] Whiston mentions, that Mr. Baker, of St. John's, Cambridge, a worthy and learned man, as well as others of the college, had thoughts of taking the oath of allegiance on the death of King James; but the oath of abjuration coming out the next year, had such expressions as he still scrupled. Whiston's _Memoirs_; _Biog. Brit._ (Kippis's edition), art. Baker.