Chapter XVI (4)

_Extension of penal laws._--These restraints upon personal liberty, and what is worse, these endeavours, as they seem, to prevent the fair administration of justice between the Crown and the subject, have in general, more especially in modern times, excited little regard as they have passed through the houses of parliament. A sad necessity has over-ruled the maxims of ancient law; nor is it my business to censure our fiscal code, but to point out that it is to be counted as a set-off against the advantages of the revolution, and has in fact diminished the freedom and justice which we claim for our polity. And, that its provisions have sometimes gone so far as to give alarm to not very susceptible minds, may be shown from a remarkable debate in the year 1737. A bill having been brought in by the ministers to prevent smuggling, which contained some unusual clauses, it was strongly opposed, among other peers, by Lord Chancellor Talbot himself, of course, in the cabinet, and by Lord Hardwicke, then chief justice, a regularly bred Crown lawyer, and in his whole life disposed to hold very high the authority of government. They objected to a clause subjecting any three persons travelling with arms, to the penalty of transportation, on proof by two witnesses that their intention was to assist in the clandestine landing, or carrying away prohibited or uncustomed goods. "We have in our laws," said one of the opposing lords, "no such thing as a crime by implication, nor can a malicious intention ever be proved by witnesses. Facts only are admitted to be proved, and from those facts the judge and jury are to determine with what intention they were committed; but no judge or jury can ever, by our laws, suppose, much less determine, that an action, in itself innocent or indifferent, was attended with a criminal and malicious intention. Another security for our liberties is, that no subject can be imprisoned unless some felonious and high crime be sworn against him. This, with respect to private men, is the very foundation stone of all our liberties; and, if we remove it, if we but knock off a corner, we may probably overturn the whole fabric. A third guard for our liberties is that right which every subject has, not only to provide himself with arms proper for his defence, but to accustom himself to the use of those arms, and to travel with them whenever he has a mind." But the clause in question, it was contended, was repugnant to all the maxims of free government. No presumption of a crime could be drawn from the mere wearing of arms, an act not only innocent, but highly commendable; and therefore the admitting of witnesses to prove that any of these men were armed, in order to assist in smuggling, would be the admitting of witnesses to prove an intention, which was inconsistent with the whole tenor of our laws.[406] They objected to another provision, subjecting a party against whom information should be given that he intended to assist in smuggling, to imprisonment without bail, though the offence itself were in its nature bailable; to another, which made informations for assault upon officers of the revenue triable in any county of England; and to a yet more startling protection thrown round the same favoured class, that the magistrates should be bound to admit them to bail on charges of killing or wounding any one in the execution of their duty. The bill itself was carried by no great majority; and the provisions subsist at this day, or perhaps have received a further extension.

It will thus appear to every man who takes a comprehensive view of our constitutional history, that the executive government, though shorn of its lustre, has not lost so much of its real efficacy by the consequences of the revolution as is often supposed; at least, that with a regular army to put down insurrection, and an influence sufficient to obtain fresh statutes of restriction, if such should ever be deemed necessary, it is not exposed, in the ordinary course of affairs, to any serious hazard. But we must here distinguish the executive government, using that word in its largest sense, from the Crown itself, or the personal authority of the sovereign. This is a matter of rather delicate inquiry, but too material to be passed by.

_Diminution of personal authority of the Crown._--The real power of the prince, in the most despotic monarchy, must have its limits from nature, and bear some proportion to his courage, his activity, and his intellect. The tyrants of the East become puppets or slaves of their vizirs; or it turns to a game of cunning, wherein the winner is he who shall succeed in tying the bow-string round the other's neck. After some ages of feeble monarchs, the titular royalty is found wholly separated from the power of command, and glides on to posterity in its languid channel, till some usurper or conqueror stops up the stream for ever. In the civilised kingdoms of Europe, those very institutions which secure the permanence of royal families, and afford them a guarantee against manifest subjection to a minister, take generally out of the hands of the sovereign the practical government of his people. Unless his capacities are above the level of ordinary kings, he must repose on the wisdom and diligence of the statesmen he employs, with the sacrifice, perhaps, of his own prepossessions in policy, and against the bent of his personal affections. The power of a king of England is not to be compared with an ideal absoluteness, but with that which could be enjoyed in the actual state of society by the same person in a less bounded monarchy.

The descendants of William the Conqueror on the English throne, down to the end of the seventeenth century, have been a good deal above the average in those qualities which enable or at least induce, kings to take on themselves a large share of the public administration; as will appear by comparing their line with that of the house of Capet, or perhaps most others during an equal period. Without going farther back, we know that Henry VII., Henry VIII., Elizabeth, the four kings of the house of Stuart, though not always with as much ability as diligence, were the master-movers of their own policy, not very susceptible of advice, and always sufficiently acquainted with the details of government to act without it. This was eminently the case also with William III., who was truly his own minister, and much better fitted for that office than those who served him. The king, according to our constitution, is supposed to be present in council, and was in fact usually, or very frequently, present, so long as the council remained as a deliberative body for matters of domestic and foreign policy. But, when a junto or cabinet came to supersede that ancient and responsible body, the king himself ceased to preside, and received their advice separately, according to their respective functions of treasurer, secretary, or chancellor, or that of the whole cabinet through one of its leading members. This change however was gradual; for cabinet councils were sometimes held in the presence of William and Anne; to which other counsellors, not strictly of that select number, were occasionally summoned.

But on the accession of the house of Hanover, this personal superintendence of the sovereign necessarily came to an end. The fact is hardly credible that, George I. being incapable of speaking English, as Sir Robert Walpole was of conversing in French, the monarch and his minister held discourse with each other in Latin.[407] It is impossible that, with so defective a means of communication (for Walpole, though by no means an illiterate man, cannot be supposed to have spoken readily a language very little familiar in this country), George could have obtained much insight into his domestic affairs, or been much acquainted with the characters of his subjects. We know, in truth, that he nearly abandoned the consideration of both, and trusted his ministers with the entire management of this kingdom, content to employ its great name for the promotion of his electoral interests. This continued in a less degree to be the case with his son, who, though better acquainted with the language and circumstances of Great Britain, and more jealous of his prerogative, was conscious of his incapacity to determine on matters of domestic government, and reserved almost his whole attention for the politics of Germany.

_Party connections._--The broad distinctions of party contributed to weaken the real supremacy of the sovereign. It had been usual before the revolution, and in the two succeeding reigns, to select ministers individually at discretion; and, though some might hold themselves at liberty to decline office, it was by no means deemed a point of honour and fidelity to do so. Hence men in the possession of high posts had no strong bond of union, and frequently took opposite sides on public measures of no light moment. The queen particularly was always loth to discard a servant on account of his vote in parliament; a conduct generous perhaps, but feeble, inconvenient, when carried to such excess, in our constitution, and in effect holding out a reward to ingratitude and treachery. But the whigs having come exclusively into office under the line of Hanover (which, as I have elsewhere observed, was inevitable), formed a sort of phalanx, which the Crown was not always able to break, and which never could have been broken, but for that internal force of repulsion by which personal cupidity and ambition are ever tending to separate the elements of factions. It became the point of honour among public men to fight uniformly under the same banner, though not perhaps for the same cause; if indeed there was any cause really fought for, but the advancement of a party. In this preference of certain denominations, or of certain leaders, to the real principles which ought to be the basis of political consistency, there was an evident deviation from the true standard of public virtue; but the ignominy attached to the dereliction of friends for the sake of emolument, though it was every day incurred, must have tended gradually to purify the general character of parliament. Meanwhile the Crown lost all that party attachments gained; a truth indisputable on reflection, though while the Crown and the party in power act in the same direction, the relative efficiency of the two forces is not immediately estimated. It was seen, however, very manifestly in the year 1746; when, after long bickering between the Pelhams and Lord Granville, the king's favourite minister, the former, in conjunction with a majority of the cabinet, threw up their offices, and compelled the king, after an abortive effort at a new administration, to sacrifice his favourite, and replace those in power whom he could not exclude from it. The same took place in a later period of his reign, when after many struggles he submitted to the ascendency of Mr. Pitt.[408]

It seems difficult for any king of England, however conscientiously observant of the lawful rights of his subjects, and of the limitations they impose on his prerogative, to rest always very content with this practical condition of the monarchy. The choice of his counsellors, the conduct of government, are intrusted, he will be told, by the constitution to his sole pleasure. Yet both in the one and the other he finds a perpetual disposition to restrain his exercise of power; and, though it is easy to demonstrate that the public good is far better promoted by the virtual control of parliament and the nation over the whole executive government, than by adhering to the letter of the constitution, it is not to be expected that the argument will be conclusive to a royal understanding. Hence, he may be tempted to play rather a petty game, and endeavour to regain, by intrigue and insincerity, that power of acting by his own will, which he thinks unfairly wrested from him. A king of England, in the calculations of politics, is little more than one among the public men of the day; taller indeed, like Saul or Agamemnon, by the head and shoulders, and therefore with no slight advantages in the scramble; but not a match for the many, unless he can bring some dexterity to second his strength, and make the best of the self-interest and animosities of those with whom he has to deal. And of this there will generally be so much, that in the long run he will be found to succeed in the greater part of his desires. Thus George I. and George II., in whom the personal authority seems to have been at the lowest point it has ever reached, drew their ministers, not always willingly, into that course of continental politics which was supposed to serve the purposes of Hanover far better than of England. It is well known that the Walpoles and the Pelhams condemned in private this excessive predilection of their masters for their native country, which alone could endanger their English throne.[409] Yet after the two latter brothers had inveighed against Lord Granville, and driven him out of power for seconding the king's pertinacity in continuing the war of 1743, they went on themselves in the same track for at least two years, to the imminent hazard of losing for ever the Low Countries and Holland, if the French government, so indiscriminately charged with ambition, had not displayed extraordinary moderation at the treaty of Aix la Chapelle. The twelve years that ensued gave more abundant proofs of the submissiveness with which the schemes of George II. for the good of Hanover were received by his ministers, though not by his people; but the most striking instance of all is the abandonment by Mr. Pitt himself of all his former professions in pouring troops into Germany. I do not inquire whether a sense of national honour might not render some of these measures justifiable, though none of them were advantageous; but it is certain that the strong bent of the king's partiality forced them on against the repugnance of most statesmen, as well as of the great majority in parliament and out of it.

Comparatively however with the state of prerogative before the revolution, we can hardly dispute that there has been a systematic diminution of the reigning prince's control, which, though it may be compensated or concealed in ordinary times by the general influence of the executive administration, is of material importance in a constitutional light. Independently of other consequences which might be pointed out as probable or contingent, it affords a real security against endeavours by the Crown to subvert or essentially impair the other parts of our government. For, though a king may believe himself and his posterity to be interested in obtaining arbitrary power, it is far less likely that a minister should desire to do so--I mean arbitrary, not in relation to temporary or partial abridgments of the subject's liberty, but to such projects as Charles I. and James II. attempted to execute. What indeed might be effected by a king, at once able, active, popular, and ambitious, should such ever unfortunately appear in this country, it is not easy to predict; certainly his reign would be dangerous, on one side or other, to the present balance of the constitution. But against this contingent evil, or the far more probable encroachments of ministers, which, though not going the full length of despotic power, might slowly undermine and contract the rights of the people, no positive statutes can be devised so effectual as the vigilance of the people themselves and their increased means of knowing and estimating the measures of their government.

_Influence of political writings._--The publication of regular newspapers, partly designed for the communication of intelligence, partly for the discussion of political topics, may be referred, upon the whole, to the reign of Anne, when they obtained great circulation, and became the accredited organs of different factions. The tory ministers, towards the close of that reign, were annoyed at the vivacity of the press both in periodical and other writings, which led to a stamp-duty, intended chiefly to diminish their number, and was nearly producing more pernicious restrictions, such as renewing the licensing act, or compelling authors to acknowledge their names.[410] These however did not take place, and the government more honourably coped with their adversaries in the same warfare; nor, with Swift and Bolingbroke on their side, could they require, except indeed through the badness of their cause, any aid from the arm of power.[411]

In a single hour these two great masters of language were changed from advocates of the Crown to tribunes of the people; both more distinguished as writers in this altered scene of their fortunes, and certainly among the first political combatants with the weapons of the press whom the world has ever known. Bolingbroke's influence was of course greater in England; and, with all the signal faults of his public character, with all the factiousness which dictated most of his writings and the indefinite declamation or shallow reasoning which they frequently display, they have merits not always sufficiently acknowledged. He seems first to have made the tories reject their old tenets of exalted prerogative and hereditary right, and scorn the high-church theories which they had maintained under William and Anne. His _Dissertation on Parties_, and _Letters on the History of England_, are in fact written on whig principles (if I know what is meant by that name) in their general tendency; however a politician, who had always some particular end in view, may have fallen into several inconsistencies. The same character is due to the _Craftsman_, and to most of the temporary pamphlets directed against Sir Robert Walpole. They teemed, it is true, with exaggerated declamations on the side of liberty; but that was the side they took; it was to generous prejudices they appealed, nor did they ever advert to the times before the revolution but with contempt or abhorrence. Libels there were indeed of a different class, proceeding from the jacobite school; but these obtained little regard; the jacobites themselves, or such as affected to be so, having more frequently espoused that cause from a sense of dissatisfaction with the conduct of the reigning family than from much regard to the pretensions of the other. Upon the whole matter it must be evident to every person who is at all conversant with the publications of George II.'s reign, with the poems, the novels, the essays, and almost all the literature of the time, that what are called the popular or liberal doctrines of government were decidedly prevalent. The supporters themselves of the Walpole and Pelham administrations, though professedly whigs, and tenacious of revolution principles, made complaints, both in parliament and in pamphlets, of the democratical spirit, the insubordination to authority, the tendency to republican sentiments, which they alleged to have gained ground among the people. It is certain that the tone of popular opinion gave some countenance to these assertions, though much exaggerated to create alarm in the aristocratical classes, and furnish arguments against redress of abuses.

_Publication of debates._--The two houses of parliament are supposed to deliberate with closed doors. It is always competent for any one member to insist that strangers be excluded; not on any special ground, but by merely enforcing the standing order for that purpose. It has been several times resolved, that it is a high breach of privilege to publish any speeches or proceedings of the Commons; though they have since directed their own votes and resolutions to be printed. Many persons have been punished by commitment for this offence; and it is still highly irregular, in any debate, to allude to the reports in newspapers, except for the purpose of animadverting on the breach of privilege.[412] Notwithstanding this pretended strictness, notices of the more interesting discussions were frequently made public; and entire speeches were sometimes circulated by those who had sought popularity in delivering them. After the accession of George I. we find a pretty regular account of debates in an annual publication, Boyer's _Historical Register_, which was continued to the year 1737. They were afterwards published monthly, and much more at length, in the _London_ and the _Gentleman's Magazines_; the latter, as is well known, improved by the pen of Johnson yet not so as to lose by any means the leading scope of the arguments. It follows of course that the restriction upon the presence of strangers had been almost entirely dispensed with. A transparent veil was thrown over this innovation by disguising the names of the speakers, or more commonly by printing only initial and final letters. This ridiculous affectation of concealment was extended to many other words in political writings, and had not wholly ceased in the American war.

It is almost impossible to over-rate the value of this regular publication of proceedings in parliament, carried as it has been in our own time to nearly as great copiousness and accuracy as is probably attainable. It tends manifestly and powerfully to keep within bounds the supineness and negligence, the partiality and corruption, to which every parliament, either from the nature of its composition or the frailty of mankind, must more or less be liable. Perhaps the constitution would not have stood so long, or rather would have stood like an useless and untenanted mansion, if this unlawful means had not kept up a perpetual intercourse, a reciprocity of influence between the parliament and the people. A stream of fresh air, boisterous perhaps sometimes as the winds of the north, yet as healthy and invigorating, flows in to renovate the stagnant atmosphere, and to prevent that _malaria_, which self-interest and oligarchical exclusiveness are always tending to generate. Nor has its importance been less perceptible in affording the means of vindicating the measures of government, and securing to them, when just and reasonable, the approbation of the majority among the middle ranks, whose weight in the scale has been gradually increasing during the last and present centuries.

_Increased influence of the middle ranks._--This augmentation of the democratical influence, using that term as applied to the commercial and industrious classes in contradistinction to the territorial aristocracy, was the slow but certain effect of accumulated wealth and diffused knowledge, acting however on the traditional notions of freedom and equality which had ever prevailed in the English people. The nation, exhausted by the long wars of William and Anne, recovered strength in thirty years of peace that ensued; and in that period, especially under the prudent rule of Walpole, the seeds of our commercial greatness were gradually ripened. It was evidently the most prosperous season that England had ever experienced; and the progression, though slow, being uniform, the reign perhaps of George II. might not disadvantageously be compared, for the real happiness of the community, with that more brilliant but uncertain and oscillatory condition which has ensued. A distinguished writer has observed that the labourer's wages have never, at least for many ages, commanded so large a portion of subsistence as in this part of the eighteenth century.[413] The public debt, though it excited alarms from its magnitude, at which we are now accustomed to smile, and though too little care was taken for redeeming it, did not press very heavily on the nation; as the low rate of interest evinces, the government securities at three per cent. having generally stood above par. In the war of 1743, which from the selfish practice of relying wholly on loans did not much retard the immediate advance of the country, and still more after the peace of Aix la Chapelle, a striking increase of wealth became perceptible.[414] This was shown in one circumstance directly affecting the character of the constitution. The smaller boroughs, which had been from the earliest time under the command of neighbouring peers and gentlemen, or sometimes of the Crown, were attempted by rich capitalists, with no other connection or recommendation than one which is generally sufficient. This appears to have been first observed in the general election of 1747 and 1754;[415] and though the prevalence of bribery is attested by the statute-book, and the journals of parliament from the revolution, it seems not to have broken down all floodgates till near the end of the reign of George II. The sale of seats in parliament, like any other transferable property, is never mentioned in any book that I remember to have seen of an earlier date than 1760. We may dispense therefore with the enquiry in what manner this extraordinary traffic has affected the constitution, observing only that its influence must have tended to counteract that of the territorial aristocracy, which is still sufficiently predominant. The country gentlemen, who claimed to themselves a character of more independence and patriotism than could be found in any other class, had long endeavoured to protect their ascendancy by excluding the rest of the community from parliament. This was the principle of the bill, which, after being frequently attempted, passed into a law during the tory administration of Anne, requiring every member of the Commons, except those for the universities, to possess, as a qualification for his seat, a landed estate, above all incumbrances, of £300 a year.[416] By a later act of George II., with which it was thought expedient, by the government of the day, to gratify the landed interest, this property must be stated on oath by every member on taking his seat, and, if required, at his election.[417] The law is however notoriously evaded; and though much might be urged in favour of rendering a competent income the condition of eligibility, few would be found at present to maintain that the freehold qualification is not required both unconstitutionally, according to the ancient theory of representation, and absurdly, according to the present state of property in England. But I am again admonished, as I have frequently been in writing these last pages, to break off from subjects that might carry me too far away from the business of this history; and, content with compiling and selecting the records of the past, to shun the difficult and ambitious office of judging the present, or of speculating upon the future.

FOOTNOTES:

[294] 4 Anne, c. 8; _Parl. Hist._ 457 _et post_; Burnet, 429.

[295] 6 Anne, c. 6; _Parl. Hist._ 613; Somerville, 296; _Hardw. Papers_, ii. 473. Cunningham attests the zeal of the whigs for abolishing the Scots privy council, though he is wrong in reckoning Lord Cowper among them, whose name appears in the protest on the other side. ii. 135, etc. The distinction of old and modern whigs appeared again in this reign; the former professing, and in general feeling, a more steady attachment to the principles of civil liberty. Sir Peter King, Sir Joseph Jekyll, Mr. Wortley, Mr. Hampden, and the historian himself, were of this description; and consequently did not always support Godolphin. P. 210, etc. Mr. Wortley brought in a bill, which passed the Commons in 1710, for voting by ballot. It was opposed by Wharton and Godolphin in the Lords, as dangerous to the constitution, and thrown out. Wortley, he says, went the next year to Venice, on purpose to inquire into the effects of the ballot which prevailed universally in that republic. P. 285.

[296] _Parl. Hist._ vi. 805; Burnet, 537; _State Trials_, xv. 1. It is said in Coxe's _Life of Marlborough_, iii. 141, that Marlborough and Somers were against this prosecution. This writer goes out of his way to make a false and impertinent remark on the managers of the impeachment, as giving encouragement by their speeches to licentiousness and sedition. _Id._ 166.

[297] "The managers appointed by the House of Commons," says an ardent jacobite, "behaved with all the insolence imaginable. In their discourse they boldly asserted, even in her majesty's presence, that, if the right to the crown was hereditary and indefeasible, the prince beyond the seas, meaning the king, and not the queen, had the legal title to it, she having no claim thereto, but what she owed to the people; and that by the revolution principles, on which the constitution was founded and to which the laws of the land agreed, the people might turn out or lay aside their sovereigns as they saw cause. Though, no doubt of it, there was a great deal of truth in these assertions, it is easy to be believed that the queen was not well pleased to hear them maintained, even in her own presence and in so solemn a manner, before such a great concourse of her subjects. For, though princes do cherish these and the like doctrines, whilst they serve as the means to advance themselves to a crown, yet being once possessed thereof, they have as little satisfaction in them as those who succeed by an hereditary unquestionable title." _Lockhart Papers_, i. 312.

It is probable enough that the last remark has its weight, and that the queen did not wholly like the speeches of some of the managers; and yet nothing can be more certain than that she owed her crown in the first instance, and the preservation of it at that very time, to those insolent doctrines which wounded her royal ear; and that the genuine loyalists would soon have lodged her in the Tower.

[298] _State Trials_, xv. 95.

[299] _Id._ 115.

[300] _Id._ 127.

[301] _Id._ 61.

[302] _State Trials_, 196, 229. It is observed by Cunningham (p. 286) that Sacheverell's counsel, except Phipps, were ashamed of him; which is really not far from the case. "The doctor," says Lockhart, "employed Sir Simon, afterwards Lord Harcourt, and Sir Constantine Phipps as his counsel, who defended him the best way they could, though they were hard put to it to maintain the hereditary right and unlimited doctrine of non-resistance, and not condemn the revolution. And the truth on it is, these are so inconsistent with one another that the chief arguments alleged in this and other parallel cases came to no more than this; that the revolution was an exception from the nature of government in general, and the constitution and laws of Britain in particular, which necessity in that particular case made expedient and lawful." _Ibid._

[303] _State Trials_, 407.

[304] _Id._ 110.

[305] Cunningham says that the Duke of Leeds spoke strongly in favour of the revolution, though he voted Sacheverell not guilty. P. 298. Lockhart observes that he added success to necessity, as an essential point for rendering the revolution lawful.

[306] The homilies are so much more vehement against resistance than Sacheverell was, that it would have been awkward to pass a rigorous sentence on him. In fact, he or any other clergyman had a right to preach the homily against rebellion instead of a sermon. As to their laying down general rules without adverting to the exceptions, an apology which the managers set up for them, it was just as good for Sacheverell; and the homilies expressly deny all possible exceptions. Tillotson had a plan of dropping these old compositions, which in some doctrinal points, as well as in the tenet of non-resistance, do not represent the sentiments of the modern church, though, in a general way, it subscribes to them. But the times were not ripe for this, or some other of that good prelate's designs. Wordsworth's _Eccles. Biog._ vol. vi. The quotations from the homilies and other approved works by Sacheverell's counsel are irresistible, and must have increased the party spirit of the clergy. "No conjuncture of circumstances whatever," says Bishop Sanderson, "can make that expedient to be done at any time that is of itself, and in the kind, unlawful. For a man to take up arms offensive or defensive against a lawful sovereign, being a thing in its nature simply and _de toto genere_ unlawful, may not be done by any man, at any time, in any case, upon any colour or pretence whatsoever." _State Trials_, 231.

[307] _Parl. Hist._ vi. 57. They did not scruple, however, to say what cost nothing but veracity and gratitude, that Marlborough had retrieved the honour of the nation. This was justly objected to, as reflecting on the late king, but carried by 180 to 80. _Id._ 58; Burnet.

[308] Coxe's _Marlborough_, i. 483. Mr. Smith was chosen speaker by 248 to 205, a slender majority; but some of the ministerial party seem to have thought him too much a whig. _Id._ 485; _Parl. Hist._ 450. The whig newspapers were long hostile to Marlborough.

[309] Burnet rather gently slides over these jealousies between Godolphin and the whig junto; and Tindal, his mere copyist, is not worth mentioning. But Cunningham's history, and still more the letters published in Coxe's _Life of Marlborough_, show better the state of party intrigues; which the _Parliamentary History_ also illustrates, as well as many pamphlets of the time. Somerville has carefully compiled as much as was known when he wrote.

[310] _Parl. Hist._ vi. 4.

[311] Nov. 27; _Parl. Hist._ 477.

[312] Coxe's _Marlborough_, i. 453, ii. 110; Cunningham, ii. 52, 83.

[313] _Mémoires de Torcy_, vol. ii. _passim_; Coxe's _Marlborough_, vol. iii.; Bolingbroke's _Letters on History_, and Lord Walpole's answer to them; Cunningham; Somerville, 840.

[314] The late biographer of Marlborough asserts that he was against breaking off the conferences in 1709, though clearly for insisting on the cession of Spain (iii. 40). Godolphin, Somers, and the whigs in general, expected Louis XIV. to yield the thirty-seventh article. Cowper, however, was always doubtful of this. _Id._ 176.

It is very hard to pronounce, as it appears to me, on the great problem of Louis's sincerity in this negotiation. No decisive evidence seems to have been brought on the contrary side. The most remarkable authority that way is a passage in the _Mémoires of St. Phelipe_, iii. 263, who certainly asserts that the King of France had, without the knowledge of any of his ministers, assured his grandson of a continued support. But the question returns as to St. Phelipe's means of knowing so important a secret. On the other hand, I cannot discover in the long correspondence between Madame de Maintenon and the Princesse des Ursins the least corroboration of these suspicions, but much to the contrary effect. Nor does Torcy drop a word, though writing when all was over, by which we should infer that the court of Versailles had any other hopes left in 1709, than what still lingered in their heart from the determined spirit of the Castilians themselves.

It appears by the _Mémoires de Noailles_, iii. 10 (edit. 1777), that Louis wrote to Philip, 26th Nov. 1708, hinting that he must reluctantly give him up, in answer to one wherein the latter had declared that he would not quit Spain while he had a drop of blood in his veins. And on the French ambassador at Madrid, Amelot, remonstrating against the abandonment of Spain, with an evident intimation that Philip could not support himself alone, the King of France answered that he must end the war at any price. 15th April 1709. _Id._ 34. In the next year, after the battle of Saragosa, which seemed to turn the scale wholly against Philip, Noailles was sent to Madrid in order to persuade that prince to abandon the contest. _Id._ 107. There were some in France who would even have accepted the thirty-seventh article, of whom Madame de Maintenon seems to have been. P. 117. We may perhaps think that an explicit offer of Naples, on the part of the allies, would have changed the scene; nay, it seems as if Louis would have been content at this time with Sardinia and Sicily. P. 108.

[315] A contemporary historian of remarkable gravity observes: "It was strange to see how much the desire of French wine, and the dearness of it, alienated many men from the Duke of Marlborough's friendship." Cunningham, ii. 220. The hard drinkers complained that they were poisoned by port; these formed almost a party: Dr. Aldrich (Dean of Christchurch, surnamed the priest of Bacchus), Dr. Ratcliffe, General Churchill, etc. "And all the bottle companions, many physicians, and great numbers of the lawyers and inferior clergy, and, in fine, the loose women too, were united together in the faction against the Duke of Marlborough."

[316] A bill was attempted in 1704 to recruit the army by a forced conscription of men from each parish, but laid aside as unconstitutional. Boyer's _Reign of Queen Anne_, p. 123. It was tried again in 1707 with like success. P. 319. But it was resolved instead to bring in a bill for raising a sufficient number of troops out of such persons as have no lawful calling or employment. Stat. 4 Anne, c. 10; _Parl. Hist._ 335. The parish officers were thus enabled to press men for the land service; a method hardly more unconstitutional than the former, and liable to enormous abuses. The act was temporary, but renewed several times during the war. It was afterwards revived in 1757 (30 Geo. 2, c. 8), but never, I believe, on any later occasion.

[317] Every contemporary writer bears testimony to the exhaustion of France, rendered still more deplorable by the unfavourable season of 1709, which produced a famine. Madame de Maintenon's letters to the Princess des Ursins are full of the public misery, which she did not soften, out of some vain hope that her inflexible correspondent might relent at length, and prevail on the King and Queen of Spain to abandon their throne.

[318] It is evident from Macpherson's _Papers_, that all hopes of a restoration in the reign of Anne were given up in England. They soon revived, however, as to Scotland, and grew stronger about the time of the union.

[319] The _Rehearsal_ is not written in such a manner as to gain over many proselytes. The scheme of fighting against liberty with her own arms had not yet come into vogue; or rather Leslie was too mere a bigot to practise it. He is wholly for arbitrary power; but the commons stuff of his journal is high-church notions of all descriptions. This could not win many in the reign of Anne.

[320] Macpherson, i. 608. If Carte's anecdotes are true, which is very doubtful, Godolphin, after he was turned out, declared his concern at not having restored the king; that he thought Harley would do it, but by French assistance, which he did not intend; that the tories had always distressed him, and his administration had passed in a struggle with the whig junto. _Id._ 170. Somerville says, he was assured that Carte was reckoned credulous and ill-informed by the jacobites. P. 273. It seems indeed, by some passages in Macpherson's _Papers_, that the Stuart agents either kept up an intercourse with Godolphin, or pretended to do so. Vol. ii. 2 _et post_. But it is evident that they had no confidence in him.

It must be observed, however, that Lord Dartmouth, in his notes on Burnet, repeatedly intimates that Godolphin's secret object in his ministry was the restoration of the house of Stuart, and that with this view he suffered the act of security in Scotland to pass, which raised such a clamour that he was forced to close with the whigs in order to save himself. It is said also by a very good authority, Lord Hardwicke (note on Burnet, Oxf. edit. v. 352) that there was something not easy to be accounted for in the conduct of the ministry, preceding the attempt on Scotland in 1708; giving us to understand in the subsequent part of the note that Godolphin was suspected of connivance with it. And this is confirmed by Ker of Kersland, who directly charges the treasurer with extreme remissness, if not something worse. _Memoirs_, i. 54. See also Lockhart's _Commentaries_ (in _Lockhart Papers_, i. 308). Yet it seems almost impossible to suspect Godolphin of such treachery, not only towards the protestant succession, but his mistress herself.

[321] Macpherson, ii. 74 _et post_; Hooke's _Negotiations_; Lockhart's _Commentaries_; Ker of Kersland's _Memoirs_, 45; Burnet; Cunningham; Somerville.

[322] Burnet, 502.

[323] Macpherson, ii. 158, 228, 283, and see Somerville, 272.

[324] _Memoirs of Berwick_, 1778 (English translation). And compare Lockhart's _Commentaries_, p. 368; Macpherson, sub. ann. 1712 and 1713, _passim_.

[325] The pamphlets on Harley's side, and probably written under his inspection, for at least the first year after his elevation to power, such as one entitled "Faults on both Sides," ascribed to Richard Harley, his relation (_Somers Tracts_, xii. 678); "Spectator's Address to the Whigs on Occasion of the stabbing Mr. Harley," or the "Secret History of the October Club," 1711 (I believe by De Foe), seem to have for their object to reconcile as many of the whigs as possible to his administration, and to display his aversion to the violent tories. There can be no doubt that his first project was to have excluded the more acrimonious whigs, such as Wharton and Sunderland, as well as the Duke of Marlborough and his wife, and coalesced with Cowper and Somers, both of whom were also in favour with the queen. But the steadiness of the whig party, and their resentment of his duplicity, forced him into the opposite quarters, though he never lost sight of his schemes for reconciliation.

The dissembling nature of this unfortunate statesman rendered his designs suspected. The whigs, at least in 1713, in their correspondence with the court of Hanover, speak of him as entirely in the jacobite interest. Macpherson, ii. 472, 509. Cunningham, who is not on the whole unfavourable to Harley, says, that "men of all parties agreed in concluding that his designs were in the Pretender's favour. And it is certain that he affected to have it thought so."--P. 303. Lockhart also bears witness to the reliance placed on him by the jacobites, and argues with some plausibility (p. 377) that the Duke of Hamilton's appointment as ambassador to France, in 1712, must have been designed to further their object; though he believed that the death of that nobleman, in a duel with Lord Mohun, just as he was setting out for Paris, put a stop to the scheme, and "questions if it was ever heartily re-assumed by Lord Oxford."--"This I know, that his lordship regretting to a friend of mine the duke's death, next day after it happened, told him that it disordered all their schemes, seeing Great Britain did not afford a person capable to discharge the trust which was committed to his grace, which sure was somewhat very extraordinary; and what other than the king's restoration could there be of so very great importance, or require such dexterity in managing, is not easy to imagine. And indeed it is more than probable that before his lordship could pitch upon one he might depend on in such weighty matters, the discord and division which happened betwixt him and the other ministers of state diverted or suspended his design of serving the king." Lockhart's _Commentaries_, p. 410. But there is more reason to doubt whether this design to serve the king ever existed.

[326] If we may trust to a book printed in 1717, with the title, "Minutes of Monsieur Mesnager's Negotiations with the Court of England towards the Close of the last Reign, written by himself," that agent of the French cabinet entered into an arrangement with Bolingbroke in March 1712, about the Pretender. It was agreed that Louis should ostensibly abandon him, but should not be obliged, in case of the queen's death, not to use endeavours for his restoration. Lady Masham was wholly for this; but owned "the rage and irreconcilable aversion of the greatest part of the common people to her (the queen's) brother was grown to a height." But I must confess that, although Macpherson has extracted the above passage, and a more judicious writer, Somerville, quotes the book freely as genuine (_Hist. of Anne_, p. 581, etc.), I found in reading it what seemed to me the strongest grounds of suspicion. It is printed in England, without a word of preface to explain how such important secrets came to be divulged, or by what means the book came before the world; the correct information as to English customs and persons frequently betrays a native pen; the truth it contains, as to jacobite intrigues, might have transpired from other sources, and in the main was pretty well suspected, as the Report of the Secret Committee on the Impeachments in 1715 shows; so that, upon the whole, I cannot but reckon it a forgery in order to injure the tory leaders.

But however this may be, we find Bolingbroke in correspondence with the Stuart agents in the later part of 1712. Macpherson, 366. And his own correspondence with Lord Strafford shows his dread and dislike of Hanover (_Bol. Corr._ ii. 487 _et alibi_). The Duke of Buckingham wrote to St. Germains in July that year, with strong expressions of his attachment to the cause, and pressing the necessity of the prince's conversion to the protestant religion. Macpherson, 327. Ormond is mentioned in the Duke of Berwick's letters as in correspondence with him; and Lockhart says there was no reason to make the least question of his affection to the king, whose friends were consequently well pleased at his appointment to succeed Marlborough in the command of the army, and thought it portended some good designs in favour of him. _Id._ 376.

Of Ormond's sincerity in this cause there can indeed be little doubt; but there is almost as much reason to suspect that of Bolingbroke as of Oxford; except that, having more rashness and less principle, he was better fitted for so dangerous a counter-revolution. But in reality he had a perfect contempt for the Stuart and tory notions of government, and would doubtless have served the house of Hanover with more pleasure, if his prospects in that quarter had been more favourable. It appears that in the session of 1714, when he had become lord of the ascendant, he disappointed the zealous royalists by his delays as much as his more cautious rival had done before. Lockhart, 470. This writer repeatedly asserts that a majority of the House of Commons, both in the parliament of 1710 and that of 1713, wanted only the least encouragement from the court to have brought about the repeal of the act of settlement. But I think this very doubtful; and I am quite convinced that the nation would not have acquiesced in it. Lockhart is sanguine, and ignorant of England.

It must be admitted that part of the cabinet were steady to the protestant succession. Lord Dartmouth, Lord Powlett, Lord Trevor, and the Bishop of London were certainly so; nor can there be any reasonable doubt, as I conceive, of the Duke of Shrewsbury. On the other side, besides Ormond, Harcourt, and Bolingbroke, were the Duke of Buckingham, Sir William Wyndham, and probably Mr. Bromley.

[327] It is said that the Duke of Leeds, who was now in the Stuart interest, had sounded her in 1711, but with no success in discovering her intention. Macpherson, 212. The Duke of Buckingham pretended, in the above-mentioned letter to St. Germains, June 1712, that he had often pressed the queen on the subject of her brother's restoration, but could get no other answer than, "you see he does not make the least step to oblige me;" or, "he may thank himself for it: he knows I always loved him better than the other." _Id._ 328. This alludes to the Pretender's pertinacity, as the writer thought it, in adhering to his religion; and it may be very questionable, whether he had ever such conversation with the queen at all. But, if he had, it does not lead to the supposition, that under all circumstances she meditated his restoration. If the book under the name of Mesnager is genuine, which I much doubt, Mrs. Masham had never been able to elicit anything decisive of her majesty's inclinations; nor do any of the Stuart correspondents in Macpherson pretend to know her intentions with certainty. The following passage in Lockhart seems rather more to the purpose: On his coming to parliament in 1710, with a "high monarchical address," which he had procured from the county of Edinburgh, "the queen told me, though I had almost always opposed her measures, she did not doubt of my affection to her person, and hoped I would not concur in the design against Mrs. Masham, or for bringing over the Prince of Hanover. At first I was somewhat surprised, but recovering myself, I assured her I should never be accessary to the imposing any hardship or affront upon her; and as for the Prince of Hanover, her majesty might judge from the address I had read, that I should not be acceptable to my constituents if I gave my consent for bringing over any of that family, either now or at any time hereafter. At that she smiled, and I withdrew; and then she said to the duke (Hamilton), she believed I was an honest man and a fair dealer, and the duke replied, he could assure her I liked her majesty and all her father's bairns."--P. 317. It appears in subsequent parts of this book, that Lockhart and his friends were confident of the queen's inclinations in the last year of her life, though not of her resolution.

The truth seems to be, that Anne was very dissembling, as Swift repeatedly says in his private letters, and as feeble and timid persons in high station generally are; that she hated the house of Hanover, and in some measure feared them; but that she had no regard for the Pretender (for it is really absurd to talk like Somerville of natural affection under all the circumstances), and feared him a great deal more than the other; that she had, however, some scruples about his right, which were counterbalanced by her attachment to the church of England; consequently, that she was wavering among opposite impulses, but with a predominating timidity which would have probably kept her from any change.

[328] The Duchess of Gordon, in June 1711, sent a silver medal to the faculty of advocates at Edinburgh, with a head on one side, and the inscription, "Cujus est"; on the other, the British isles, with the word "Reddite." The dean of faculty, Dundas of Arniston, presented this medal; and there seems reason to believe that a majority of the advocates voted for its reception. Somerville, p. 452. Bolingbroke, in writing on the subject to a friend, it must be owned, speaks of the proceeding with due disapprobation. _Bolingbroke Correspondence_, i. 343. No measures, however, were taken to mark the court's displeasure.

"Nothing is more certain," says Bolingbroke in his letter to Sir William Wyndham, perhaps the finest of his writings, "than this truth, that there was at that time _no formed design_ in the party, whatever views some particular men might have, against his majesty's accession to the throne."--P. 22. This is in effect to confess a great deal; and in other parts of the same letter, he makes admissions of the same kind: though he says that he and other tories had determined, before the queen's death, to have no connection with the Pretender, on account of his religious bigotry. P. 111.