CHAPTER XV

ON THE REIGN OF WILLIAM III.

The Revolution is not to be considered as a mere effort of the nation on a pressing emergency to rescue itself from the violence of a particular monarch; much less as grounded upon the danger of the Anglican church, its emoluments, and dignities, from the bigotry of a hostile religion. It was rather the triumph of those principles which, in the language of the present day, are denominated liberal or constitutional, over those of absolute monarchy, or of monarchy not effectually controlled by stated boundaries. It was the termination of a contest between the regal power and that of parliament, which could not have been brought to so favourable an issue by any other means. But, while the chief renovation in the spirit of our government was likely to spring from breaking the line of succession, while no positive enactments would have sufficed to give security to freedom with the legitimate race of Stuart on the throne, it would have been most culpable, and even preposterous, to permit this occasion to pass by, without asserting and defining those rights and liberties, which the very indeterminate nature of the king's prerogative at common law, as well as the unequivocal extension it had lately received, must continually place in jeopardy. The House of Lords indeed, as I have observed in the last chapter, would have conferred the Crown on William and Mary, leaving the redress of grievances to future arrangement; and some eminent lawyers in the Commons, Maynard and Pollexfen, seem to have had apprehensions of keeping the nation too long in a state of anarchy.[152] But the great majority of the Commons wisely resolved to go at once to the root of the nation's grievances, and show their new sovereign that he was raised to the throne for the sake of those liberties, by violating which his predecessor had forfeited it.

_Declaration of rights._--The declaration of rights presented to the Prince of Orange by the Marquis of Halifax, as speaker of the Lords, in the presence of both houses, on the 18th of February, consists of three parts: a recital of the illegal and arbitrary acts committed by the late king, and of their consequent vote of abdication; a declaration, nearly following the words of the former part, that such enumerated acts are illegal; and a resolution, that the throne shall be filled by the Prince and Princess of Orange, according to the limitations mentioned in the last chapter. Thus the declaration of rights was indissolubly connected with the revolution-settlement, as its motive and its condition.

The Lords and Commons in this instrument declare: That the pretended power of suspending laws, and the execution of laws, by regal authority without consent of parliament, is illegal; That the pretended power of dispensing with laws by regal authority, as it hath been assumed and exercised of late, is illegal; That the commission for creating the late court of commissioners for ecclesiastical causes, and all other commissions and courts of the like nature, are illegal and pernicious; That levying of money for or to the use of the Crown, by pretence of prerogative without grant of parliament, for longer time or in any other manner than the same is or shall be granted, is illegal; That it is the right of the subjects to petition the king, and that all commitments or prosecutions for such petitions are illegal; That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is illegal; That the subjects which are protestants may have arms for their defence suitable to their condition, and as allowed by law; That elections of members of parliament ought to be free; That the freedom of speech or debates, or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament; That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; That juries ought to be duly impanelled and returned, and that jurors which pass upon men in trials of high treason ought to be freeholders; That all grants and promises of fines and forfeitures of particular persons, before conviction, are illegal and void; And that, for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.[153]

_Bill of rights._--This declaration was, some months afterwards, confirmed by a regular act of the legislature in the bill of rights, which establishes at the same time the limitation of the Crown according to the vote of both houses, and adds the important provision; That all persons who shall hold communion with the church of Rome, or shall marry a papist, shall be excluded, and for ever incapable to possess, inherit, or enjoy the Crown and government of this realm; and in all such cases, the people of these realms shall be absolved from their allegiance, and the Crown shall descend to the next heir. This was as near an approach to a generalisation of the principle of resistance as could be admitted with any security for public order.

The bill of rights contained only one clause extending rather beyond the propositions laid down in the declaration. This relates to the dispensing power, which the Lords had been unwilling absolutely to condemn. They softened the general assertion of its illegality sent up from the other house, by inserting the words "as it has been exercised of late."[154] In the bill of rights therefore a clause was introduced, that no dispensation by non obstante to any statute should be allowed, except in such cases as should be specially provided for by a bill to be passed during the present session. This reservation went to satisfy the scruples of the Lords, who did not agree without difficulty to the complete abolition of a prerogative, so long recognised, and in many cases so convenient.[155] But the palpable danger of permitting it to exist in its indefinite state, subject to the interpretation of time-serving judges, prevailed with the Commons over this consideration of conveniency; and though in the next parliament the judges were ordered by the House of Lords to draw a bill for the king's dispensing in such cases wherein they should find it necessary, and for abrogating such laws as had been usually dispensed with and were become useless, the subject seems to have received no further attention.[156]

Except in this article of the dispensing prerogative, we cannot say, on comparing the bill of rights with what is proved to be the law by statutes, or generally esteemed to be such on the authority of our best writers, that it took away any legal power of the Crown, or enlarged the limits of popular and parliamentary privilege. The most questionable proposition, though at the same time one of the most important, was that which asserts the illegality of a standing army in time of peace, unless with consent of parliament. It seems difficult to perceive in what respect this infringed on any private man's right, or by what clear reason (for no statute could be pretended) the king was debarred from enlisting soldiers by voluntary contract for the defence of his dominions, especially after an express law had declared the sole power over the militia, without giving any definition of that word, to reside in the Crown. This had never been expressly maintained by Charles II.'s parliaments; though the general repugnance of the nation to what was certainly an innovation might have provoked a body of men, who did not always measure their words, to declare its illegality.[157] It was however at least unconstitutional, by which, as distinguished from illegal, I mean a novelty of much importance, tending to endanger the established laws. And it is manifest that the king could never inflict penalties by martial law, or generally by any other course, on his troops, nor quarter them on the inhabitants, nor cause them to interfere with the civil authorities; so that, even if the proposition so absolutely expressed may be somewhat too wide, it still should be considered as virtually correct.[158] But its distinct assertion in the bill of rights put a most essential restraint on the monarchy, and rendered it in effect for ever impossible to employ any direct force or intimidation against the established laws and liberties of the people.

_Discontent with the new government._--A revolution so thoroughly remedial, and accomplished with so little cost of private suffering, so little of angry punishment or oppression of the vanquished, ought to have been hailed with unbounded thankfulness and satisfaction. The nation's deliverer and chosen sovereign, in himself the most magnanimous and heroic character of that age, might have expected no return but admiration and gratitude. Yet this was very far from being the case. In no period of time under the Stuarts were public discontent and opposition of parliament more prominent than in the reign of William III.; and that high-souled prince enjoyed far less of his subject's affection than Charles II. No part of our history perhaps is read upon the whole with less satisfaction than these thirteen years, during which he sat upon his elective throne. It will be sufficient for me to sketch generally the leading causes, and the errors both of the prince and people, which hindered the blessings of the revolution from being duly appreciated by its contemporaries.

The votes of the two houses, that James had abdicated, or in plainer words forfeited, his royal authority, that the crown was vacant, that one out of the regular line of succession should be raised to it, were so untenable by any known law, so repugnant to the principles of the established church, that a nation accustomed to think upon matters of government only as lawyers and churchmen dictated, could not easily reconcile them to its preconceived notions of duty. The first burst of resentment against the late king was mitigated by his fall; compassion, and even confidence, began to take place of it; his adherents--some denying or extenuating the faults of his administration, others more artfully representing them as capable of redress by legal measures--having recovered from their consternation, took advantage of the necessary delay before the meeting of the convention, and of the time consumed in its debates, to publish pamphlets and circulate rumours in his behalf.[159] Thus, at the moment when William and Mary were proclaimed (though it may be probable that a majority of the kingdom sustained the bold votes of its representatives), there was yet a very powerful minority who believed the constitution to be most violently shaken, if not irretrievably destroyed, and the rightful sovereign to have been excluded by usurpation. The clergy were moved by pride and shame, by the just apprehension that their influence over the people would be impaired, by jealousy or hatred of the nonconformists, to deprecate so practical a confutation of the doctrines they had preached, especially when an oath of allegiance to their new sovereign came to be imposed; and they had no alternative but to resign their benefices, or wound their reputation and consciences by submission upon some casuistical pretext.[160] Eight bishops, including the primate and several of those who had been foremost in the defence of the church during the late reign, with about four hundred clergy, some of them highly distinguished, chose the more honourable course of refusing the new oaths; and thus began the schism of the non-jurors, more mischievous in its commencement than its continuance, and not so dangerous to the government of William III. and George I. as the false submission of less sincere men.[161]

It seems undeniable that the strength of this Jacobite faction sprung from the want of apparent necessity for the change of government. Extreme oppression produces an impetuous tide of resistance, which bears away the reasonings of the casuists. But the encroachments of James II., being rather felt in prospect than much actual injury, left men in a calmer temper, and disposed to weigh somewhat nicely the nature of the proposed remedy. The revolution was, or at least seemed to be, a case of political expediency; and expediency is always a matter of uncertain argument. In many respects it was far better conducted, more peaceably, more moderately, with less passion and severity towards the guilty, with less mixture of democratic turbulence, with less innovation on the regular laws, than if it had been that extreme case of necessity which some are apt to require. But it was obtained on this account with less unanimity and heartfelt concurrence of the entire nation.

_Character and errors of William._--The demeanour of William, always cold and sometimes harsh, his foreign origin (a sort of crime in English eyes) and foreign favourites, the natural and almost laudable prejudice against one who had risen by the misfortunes of a very near relation, a desire of power not very judiciously displayed by him, conspired to keep alive this disaffection; and the opposite party, regardless of all the decencies of political lying, took care to aggravate it by the vilest calumnies against one, who, though not exempt from errors, must be accounted the greatest man of his own age. It is certain that his government was in very considerable danger for three or four years after the revolution, and even to the peace of Ryswick. The change appeared so marvellous, and contrary to the bent of men's expectation, that it could not be permanent. Hence he was surrounded by the timid and the treacherous; by those who meant to have merits to plead after a restoration, and those who meant at least to be secure. A new and revolutionary government is seldom fairly dealt with. Mankind, accustomed to forgive almost everything in favour of legitimate prescriptive power, exact an ideal faultlessness from that which claims allegiance on the score of its utility. The personal failings of its rulers, the negligences of their administration, even the inevitable privations and difficulties which the nature of human affairs or the misconduct of their predecessors create, are imputed to them with invidious minuteness. Those who deem their own merit unrewarded, become always a numerous and implacable class of adversaries; those whose schemes of public improvement have not been followed, think nothing gained by the change, and return to a restless censoriousness in which they have been accustomed to place delight. With all these it was natural that William should have to contend; but we cannot in justice impute all the unpopularity of his administration to the disaffection of one party, or the fickleness and ingratitude of another. It arose in no slight degree from errors of his own.

_Jealousy of the whigs._--The king had been raised to the throne by the vigour and zeal of the whigs; but the opposite party were so nearly upon an equality in both houses that it would have been difficult to frame his government on an exclusive basis. It would also have been highly impolitic, and, with respect to some few persons, ungrateful, to put a slight upon those who had an undeniable majority in the most powerful classes. William acted, therefore, on a wise and liberal principle, in bestowing offices of trust on Lord Danby, so meritorious in the revolution, and on Lord Nottingham, whose probity was unimpeached; while he gave the whigs, as was due, a decided preponderance in his council. Many of them, however, with that indiscriminating acrimony which belongs to all factions, could not endure the elevation of men who had complied with the court too long, and seemed by their tardy opposition[162] to be rather the patriots of the church than of civil liberty. They remembered that Danby had been impeached as a corrupt and dangerous minister; that Halifax had been involved, at least by holding a confidential office at the time, in the last and worst part of Charles's reign. They saw Godolphin, who had concurred in the commitment of the bishops, and every other measure of the late king, still in the treasury; and, though they could not reproach Nottingham with any misconduct, were shocked that his conspicuous opposition to the new settlement should be rewarded with the post of secretary of state. The mismanagement of affairs in Ireland during 1689, which was very glaring, furnished specious grounds for suspicion that the king was betrayed.[163] It is probable that he was so, though not at that time by the chiefs of his ministry. This was the beginning of that dissatisfaction with the government of William, on the part of those who had the most zeal for his throne, which eventually became far more harassing than the conspiracies of his real enemies. Halifax gave way to the prejudices of the Commons, and retired from power. These prejudices were no doubt unjust, as they respected a man so sound in principle, though not uniform in conduct, and who had withstood the arbitrary maxims of Charles and James in that cabinet, of which he unfortunately continued too long a member. But his fall is a warning to English statesmen, that they will be deemed responsible to their country for measures which they countenance by remaining in office, though they may resist them in council.

_Bill of indemnity._--The same honest warmth which impelled the whigs to murmur at the employment of men sullied by their compliance with the court, made them unwilling to concur in the king's desire of a total amnesty. They retained the bill of indemnity in the Commons; and excepting some by name, and many more by general clauses, gave their adversaries a pretext for alarming all those whose conduct had not been irreproachable. Clemency is indeed for the most part the wisest, as well as the most generous policy; yet it might seem dangerous to pass over with unlimited forgiveness that servile obedience to arbitrary power, especially in the judges, which, as it springs from a base motive, is best controlled by the fear of punishment. But some of the late king's instruments had fled with him, others were lost and ruined; it was better to follow the precedent set at the restoration, than to give them a chance of regaining public sympathy by a prosecution out of the regular course of law.[164] In one instance, the expulsion of Sir Robert Sawyer from the house, the majority displayed a just resentment against one of the most devoted adherents of the prerogative, so long as civil liberty alone was in danger. Sawyer had been latterly very conspicuous in defence of the church; and it was expedient to let the nation see that the days of Charles II. were not entirely forgotten.[165] Nothing was concluded as to the indemnity in this parliament; but in the next, William took the matter into his own hands by sending down an act of grace.

_Bill for restoring corporations._--I scarcely venture, at this distance from the scene, to pronounce an opinion as to the clause introduced by the whigs into a bill for restoring corporations, which excluded for the space of seven years all who had acted or even concurred in surrendering charters from municipal offices of trust. This was no doubt intended to maintain their own superiority by keeping the church or tory faction out of corporations. It evidently was not calculated to assuage the prevailing animosities. But, on the other hand, the cowardly submissiveness of the others to the quo warrantos seemed at least to deserve this censure; and the measure could by no means be put on a level in point of rigour with the corporation act of Charles II. As the dissenters, unquestioned friends of the revolution, had been universally excluded by that statute, and the tories had lately been strong enough to prevent their re-admission, it was not unfair for the opposite party, or rather for the government, to provide some security against men, who, in spite of their oaths of allegiance, were not likely to have thoroughly abjured their former principles. This clause, which modern historians generally condemn as oppressive, had the strong support of Mr. Somers, then solicitor-general. It was, however, lost through the court's conjunction with the tories in the lower house, and the bill itself fell to the ground in the upper; so that those who had come into corporations by very ill means retained their power, to the great disadvantage of the revolution party; as the next elections made appear.[166]

But if the whigs behaved in these instances with too much of that passion, which, though offensive and mischievous in its excess, is yet almost inseparable from patriotism and incorrupt sentiments in so numerous an assembly as the House of Commons, they amply redeemed their glory by what cost them the new king's favour, their wise and admirable settlement of the revenue.

_Settlement of the revenue._--The first parliament of Charles II. had fixed on £1,200,000 as the ordinary revenue of the Crown, sufficient in times of no peculiar exigency for the support of its dignity and for the public defence. For this they provided various resources; the hereditary excise on liquors granted in lieu of the king's feudal rights, other excise and custom duties granted for his life, the post-office, the crown lands, the tax called hearth money, or two shillings for every house, and some of smaller consequence. These in the beginning of that reign fell short of the estimate; but before its termination, by the improvement of trade and stricter management of the customs, they certainly exceeded that sum. For the revenue of James from these sources, on an average of the four years of his reign, amounted to £1,500,964; to which something more than £400,000 is to be added for the produce of duties imposed for eight years by his parliament of 1685.[167]

William appears to have entertained no doubt that this great revenue, as well as all the power and prerogative of the Crown, became vested in himself as King of England, or at least ought to be instantly settled by parliament according to the usual method.[168] There could indeed be no pretence for disputing his right to the hereditary excise, though this seems to have been questioned in debate; but the Commons soon displayed a considerable reluctance to grant the temporary revenue for the king's life. This had been done for several centuries in the first parliament of every reign. But the accounts, for which they called on this occasion, exhibited so considerable an increase of the receipts on one hand, so alarming a disposition of the expenditure on the other, that they deemed it expedient to restrain a liberality, which was not only likely to go beyond their intention, but to place them, at least in future times, too much within the power of the Crown. Its average expenses appeared to have been £1,700,000. Of this £610,000 was the charge of the late king's army, and £83,493 of the ordnance. Nearly £90,000 was set under the suspicious head of secret service, imprested to Mr. Guy, secretary of the treasury.[169] Thus it was evident that, far from sinking below the proper level, as had been the general complaint of the court in the Stuart reigns, the revenue was greatly and dangerously above it; and its excess might either be consumed in unnecessary luxury, or diverted to the worse purposes of despotism and corruption. They had indeed just declared a standing army to be illegal. But there could be no such security for the observance of this declaration as the want of means in the Crown to maintain one. Their experience of the interminable contention about supply, which had been fought with various success between the kings of England and their parliaments for some hundred years, dictated a course to which they wisely and steadily adhered, and to which, perhaps above all other changes at this revolution, the augmented authority of the House of Commons must be ascribed.

_Appropriation of supplies._--They began by voting that £1,200,000 should be the annual revenue of the Crown in time of peace; and that one half of this should be appropriated to the maintenance of the king's government and royal family, or what is now called the civil list, the other to the public defence and contingent expenditure.[170] The breaking out of an eight years' war rendered it impossible to carry into effect these resolutions as to the peace establishment: but they did not lose sight of their principle, that the king's regular and domestic expenses should be determined by a fixed annual sum, distinct from the other departments of public service. They speedily improved upon their original scheme of a definite revenue, by taking a more close and constant superintendence of these departments, the navy, army, and ordnance. Estimates of the probable expenditure were regularly laid before them, and the supply granted was strictly appropriated to each particular service.

This great and fundamental principle, as it has long been justly considered, that the money voted by parliament is appropriated, and can only be applied, to certain specified heads of expenditure, was introduced, as I have before mentioned, in the reign of Charles II., and generally, though not in every instance, adopted by his parliament. The unworthy House of Commons that sat in 1685, not content with a needless augmentation of the revenue, took credit with the king for not having appropriated their supplies.[171] But from the revolution it has been the invariable usage. The lords of the treasury, by a clause annually repeated in the appropriation act of every session, are forbidden, under severe penalties, to order by their warrant any monies in the exchequer, so appropriated, from being issued for any other service, and the officers of the exchequer to obey any such warrant. This has given the House of Commons so effectual a control over the executive power, or, more truly speaking, has rendered it so much a participator in that power, that no administration can possibly subsist without its concurrence; nor can the session of parliament be intermitted for an entire year, without leaving both the naval and military force of the kingdom unprovided for. In time of war, or in circumstances that may induce war, it has not been very uncommon to deviate a little from the rule of appropriation, by a grant of considerable sums on a vote of credit, which the Crown is thus enabled to apply at its discretion during the recess of parliament; and we have had also too frequent experience, that the charges of public service have not been brought within the limits of the last year's appropriation. But the general principle has not perhaps been often transgressed without sufficient reason; and a House of Commons would be deeply responsible to the country, if through supine confidence it should abandon that high privilege which has made it the arbiter of court factions, and the regulator of foreign connections. It is to this transference of the executive government (for the phrase is hardly too strong) from the Crown to the two houses of parliament, and especially the Commons, that we owe the proud attitude which England has maintained since the revolution, so extraordinarily dissimilar, in the eyes of Europe, to her condition, under the Stuarts. The supplies meted out with niggardly caution by former parliaments to sovereigns whom they could not trust, have flowed with redundant profuseness, when they could judge of their necessity and direct their application. Doubtless the demand has always been fixed by the ministers of the Crown, and its influence has retrieved in some degree the loss of authority; but it is still true that no small portion of the executive power, according to the established laws and customs of our government, has passed into the hands of that body, which prescribes the application of the revenue, as well as investigates at its pleasure every act of the administration.[172]

_Dissatisfaction of the king._--The convention parliament continued the revenue, as it already stood, until December 1690.[173] Their successors complied so far with the king's expectation as to grant the excise duties, besides those that were hereditary, for the lives of William and Mary, and that of the survivor.[174] The customs they only continued for four years. They provided extraordinary supplies for the conduct of the war on a scale of armament, and consequently of expenditure, unparalleled in the annals of England. But the hesitation, and, as the king imagined, the distrust they had shown in settling the ordinary revenue, sunk deep into his mind, and chiefly alienated him from the whigs, who were stronger and more conspicuous than their adversaries in the two sessions of 1689. If we believe Burnet, he felt so indignantly what appeared a systematic endeavour to reduce his power below the ancient standard of the monarchy, that he was inclined to abandon the government, and leave the nation to itself. He knew well, as he told the bishop, what was to be alleged for the two forms of government, a monarchy and a commonwealth, and would not determine which was preferable; but of all forms he thought the worst was that of a monarchy without the necessary powers.[175]

The desire of rule in William III. was as magnanimous and public-spirited as ambition can ever be in a human bosom. It was the consciousness not only of having devoted himself to a great cause, the security of Europe, and especially of Great Britain and Holland, against unceasing aggression, but of resources in his own firmness and sagacity which no other person possessed. A commanding force, a copious revenue, a supreme authority in councils, were not sought, as by the crowd of kings, for the enjoyment of selfish vanity and covetousness, but as the only sure instruments of success in his high calling, in the race of heroic enterprise which Providence had appointed for the elect champion of civil and religious liberty. We can hardly wonder that he should not quite render justice to the motives of those who seemed to impede his strenuous energies; that he should resent as ingratitude those precautions against abuse of power by him, the recent deliverer of the nation, which it had never called for against those who had sought to enslave it.

But reasonable as this apology may be, it was still an unhappy error of William that he did not sufficiently weigh the circumstances which had elevated him to the English throne, and the alteration they had inevitably made in the relations between the Crown and the parliament. Chosen upon the popular principle of general freedom and public good, on the ruins of an ancient hereditary throne, he could expect to reign on no other terms than as the chief of a commonwealth, with no other authority than the sense of the nation and of parliament deemed congenial to the new constitution. The debt of gratitude to him was indeed immense, and not sufficiently remembered; but it was due for having enabled the nation to regenerate itself, and to place barriers against future assaults, to provide securities against future misgovernment. No one could seriously assert that James II. was the only sovereign of whom there had been cause to complain. In almost every reign, on the contrary, which our history records, the innate love of arbitrary power had produced more or less of oppression. The revolution was chiefly beneficial, as it gave a stronger impulse to the desire of political liberty, and rendered it more extensively attainable. It was certainly not for the sake of replacing James by William with equal powers of doing injury, that the purest and wisest patriots engaged in that cause; but as the sole means of making a royal government permanently compatible with freedom and justice. The bill of rights had pretended to do nothing more than stigmatise some recent proceedings: were the representatives of the nation to stop short of other measures, because they seemed novel and restrictive of the Crown's authority, when for the want of them the Crown's authority had nearly freed itself from all restriction? Such was their true motive for limiting the revenue, and such the ample justification of those important statutes enacted in the course of this reign, which the king, unfortunately for his reputation and peace of mind, too jealously resisted.

_No republican party in existence._--It is by no means unusual to find mention of a commonwealth or republican party, as if it existed in some force at the time of the revolution, and throughout the reign of William III.; nay some writers, such as Hume, Dalrymple, and Somerville, have, by putting them in a sort of balance against the Jacobites, as the extremes of the whig and tory factions, endeavoured to persuade us that the one was as substantial and united a body as the other. It may, however, be confidently asserted, that no republican party had any existence; if by that word we are to understand a set of men whose object was the abolition of our limited monarchy. There might unquestionably be persons, especially among the independent sect, who cherished the memory of what they called the good old cause, and thought civil liberty irreconcilable with any form of regal government. But these were too inconsiderable, and too far removed from political influence, to deserve the appellation of a party. I believe it would be difficult to name five individuals, to whom even a speculative preference of a commonwealth may with probability be ascribed. Were it otherwise, the numerous pamphlets of this period would bear witness to their activity. Yet, with the exception perhaps of one or two, and those rather equivocal, we should search, I suspect, the collections of that time in vain for any manifestations of a republican spirit. If indeed an ardent zeal to see the prerogative effectually restrained, to vindicate that high authority of the House of Commons over the executive administration which it has in fact claimed and exercised, to purify the house itself from corrupt influence, if a tendency to dwell upon the popular origin of civil society, and the principles which Locke, above other writers, had brought again into fashion, be called republican (as in a primary but less usual sense of the word they may), no one can deny that this spirit eminently characterised the age of William III. And schemes of reformation emanating from this source were sometimes offered to the world, trenching more perhaps on the established constitution than either necessity demanded or prudence warranted. But these were anonymous and of little influence; nor did they ever extend to the absolute subversion of the throne.[176]

_William employs tories in ministry._--William, however, was very early led to imagine, whether through the insinuations of Lord Nottingham, as Burnet pretends, or the natural prejudice of kings against those who do not comply with them, that there not only existed a republican party, but that it numbered many supporters among the principal whigs. He dissolved the convention-parliament; and gave his confidence for some time to the opposite faction.[177] But, among these, a real disaffection to his government prevailed so widely that he could with difficulty select men sincerely attached to it. The majority professed only to pay allegiance as to a sovereign _de facto_, and violently opposed the bill of recognition in 1690, both on account of the words rightful and lawful king which it applied to William, and of its declaring the laws passed in the last parliament to have been good and valid.[178] They had influence enough with the king to defeat a bill proposed by the whigs, by which an oath of abjuration of James's right was to be taken by all persons in trust.[179] It is by no means certain that even those who abstained from all connection with James after his loss of the throne, would have made a strenuous resistance in case of his landing to recover it.[180] But we know that a large proportion of the tories were engaged in a confederacy to support him. Almost every peer, in fact, of any consideration among that party, with the exception of Lord Nottingham, is implicated by the secret documents which Macpherson and Dalrymple have brought to light; especially Godolphin, Carmarthen, and Marlborough, the second at that time prime minister of William (as he might justly be called), the last with circumstances of extraordinary and abandoned treachery towards his country as well as his allegiance.[181] Two of the most distinguished whigs (and if the imputation is not fully substantiated against others[182] by name, we know generally that many were liable to it), forfeited a high name among their contemporaries, in the eyes of a posterity which has known them better; the Earl of Shrewsbury, from that strange feebleness of soul which hung like a spell upon his nobler qualities, and Admiral Russell, from insolent pride and sullenness of temper. Both these were engaged in the vile intrigues of a faction they abhorred; but Shrewsbury soon learned again to revere the sovereign he had contributed to raise, and withdrew from the contamination of Jacobitism. It does not appear that he betrayed that trust which William is said with extraordinary magnanimity to have reposed on him, after a full knowledge of his connection with the court of St. Germain.[183] But Russell, though compelled to win the battle of La Hogue against his will, took care to render his splendid victory as little advantageous as possible. The credulity and almost wilful blindness of faction is strongly manifested in the conduct of the House of Commons as to the quarrel between this commander and the board of admiralty. They chose to support one who was secretly a traitor, because he bore the name of whig, tolerating his infamous neglect of duty and contemptible excuses; in order to pull down an honest, though not very able minister, who belonged to the tories.[184] But they saw clearly that the king was betrayed, though mistaken, in this instance, as to the persons; and were right in concluding that the men who had effected the revolution were in general most likely to maintain it; or, in the words of a committee of the whole house, "That his majesty be humbly advised, for the necessary support of his government, to employ in his councils and management of his affairs such persons only whose principles oblige them to stand by him and his right against the late King James, and all other pretenders whatsoever."[185] It is plain from this and other votes of the Commons, that the tories had lost that majority which they seem to have held in the first session of this parliament.[186]

It is not, however, to be inferred from this extensive combination in favour of the banished king, that his party embraced the majority of the nation, or that he could have been restored with any general testimonies of satisfaction. The friends of the revolution were still by far the more powerful body. Even the secret emissaries of James confess that the common people were strongly prejudiced against his return. His own enumeration of peers attached to his cause cannot be brought to more than thirty, exclusive of catholics;[187] and the real Jacobites were, I believe, in a far less proportion among the Commons. The hopes of that wretched victim of his own bigotry and violence rested less on the loyalty of his former subjects, or on their disaffection to his rival, than on the perfidious conspiracy of English statesmen and admirals, of lord-lieutenants and governors of towns, and on so numerous a French army as an ill-defended and disunited kingdom would be incapable to resist. He was to return, not as his brother, alone and unarmed, strong only in the consentient voice of the nation, but amidst the bayonets of 30,000 French auxiliaries. These were the pledges of just and constitutional rule, whom our patriot Jacobites invoked against the despotism of William III. It was from a king of the house of Stuart, from James II., from one thus encircled by the soldiers of Louis XIV., that we were to receive the guarantee of civil and religious liberty. Happily the determined love of arbitrary power, burning unextinguished amidst exile and disgrace, would not permit him to promise, in any distinct manner, those securities which a large portion of his own adherents required. The Jacobite faction was divided between compounders and non-compounders; the one insisting on the necessity of holding forth a promise of such new enactments upon the king's restoration as might remove all jealousies as to the rights of the church and people; the other, more agreeably to James's temper, rejecting every compromise with what they called the republican party at the expense of his ancient prerogative.[188] In a declaration which he issued from St. Germain in 1692 there was so little acknowledgment of error, so few promises of security, so many exceptions from the amnesty he offered, that the wiser of his partisans in England were willing to insinuate that it was not authentic.[189] This declaration, and the virulence of Jacobite pamphlets in the same tone, must have done harm to his cause.[190] He published another declaration next year at the earnest request of those who had seceded to his side from that of the revolution, in which he held forth more specific assurances of consenting to a limitation of his prerogative.[191] But no reflecting man could avoid perceiving that such promises wrung from his distress were illusory and insincere, that in the exultation of triumphant loyalty, even without the sword of the Gaul thrown into the scale of despotism, those who dreamed of a conditional restoration and of fresh guarantees for civil liberty, would find, like the presbyterians of 1660, that it became them rather to be anxious about their own pardon, and to receive it as a signal boon of the king's clemency. The knowledge thus obtained of James's incorrigible obstinacy seems gradually to have convinced the disaffected that no hope for the nation or for themselves could be drawn from his restoration.[192] His connections with the treacherous counsellors of William grew weaker; and even before the peace of Ryswick it was evident that the aged bigot could never wield again the sceptre he had thrown away. The scheme of assassinating our illustrious sovereign, which some of James's desperate zealots had devised without his privity, as may charitably and even reasonably be supposed,[193] gave a fatal blow to the interests of that faction. It was instantly seen that the murmurs of malecontent whigs had nothing in common with the disaffection of Jacobites. The nation resounded with an indignant cry against the atrocious conspiracy. An association abjuring the title of James, and pledging the subscribers to revenge the king's death, after the model of that in the reign of Elizabeth, was generally signed by both houses of parliament, and throughout the kingdom.[194] The adherents of the exiled family dwindled into so powerless a minority that they could make no sort of opposition to the act of settlement, and did not recover an efficient character as a party till towards the latter end of the ensuing reign.

_Attainder of Sir John Fenwick._--Perhaps the indignation of parliament against those who sought to bring back despotism through civil war and the murder of an heroic sovereign, was carried too far in the bill for attainting Sir John Fenwick of treason. Two witnesses, required by our law in a charge of that nature, Porter and Goodman, had deposed before the grand jury to Fenwick's share in the scheme of invasion, though there is no reason to believe that he was privy to the intended assassination of the king. His wife subsequently prevailed on Goodman to quit the kingdom; and thus it became impossible to obtain a conviction in the course of law. This was the apology for a special act of the legislature, by which he suffered the penalties of treason. It did not, like some other acts of attainder, inflict a punishment beyond the offence, but supplied the deficiency of legal evidence. It was sustained by the production of Goodman's examination before the privy council, and by the evidence of two grand-jurymen as to the deposition he had made on oath before them, and on which they had found the bill of indictment. It was also shown that he had been tampered with by Lady Mary Fenwick to leave the kingdom. This was undoubtedly as good secondary evidence as can well be imagined; and, though in criminal cases such evidence is not admissible by courts of law, it was plausibly urged that the legislature might prevent Fenwick from taking advantage of his own underhand management, without transgressing the moral rules of justice, or even setting the dangerous precedent of punishing treason upon a single testimony. Yet, upon the whole, the importance of adhering to the stubborn rules of law in matters of treason is so weighty, and the difficulty of keeping such a body as the House of Commons within any less precise limits so manifest, that we may well concur with those who thought Sir John Fenwick much too inconsiderable a person to warrant such an anomaly. The jealous sense of liberty prevalent in William's reign produced a very strong opposition to this bill of attainder; it passed in each house, especially in the Lords, by a small majority.[195] Nor perhaps would it have been carried but for Fenwick's imprudent disclosure, in order to save his life, of some great statesmen's intrigues with the late king; a disclosure which he dared not, or was not in a situation to confirm, but which rendered him the victim of their fear and revenge. Russell, one of those accused, brought into the Commons the bill of attainder; Marlborough voted in favour of it, the only instance wherein he quitted the tories; Godolphin and Bath, with more humanity, took the other side; and Shrewsbury absented himself from the House of Lords.[196] It is now well known that Fenwick's discoveries went not a step beyond the truth. Their effect, however, was beneficial to the state; as by displaying a strange want of secrecy in the court of St. Germains, Fenwick never having had any direct communication with those he accused, it caused Godolphin and Marlborough to break off their dangerous course of perfidy.[197]

_Ill success of the war._--Amidst these scenes of dissension and disaffection, and amidst the public losses and decline which aggravated them, we have scarce any object to contemplate with pleasure, but the magnanimous and unconquerable soul of William. Mistaken in some parts of his domestic policy, unsuited by some failings of his character for the English nation, it is still to his superiority in virtue and energy over all her own natives in that age that England is indebted for the preservation of her honour and liberty; not at the crisis only of the revolution, but through the difficult period that elapsed until the peace of Ryswick. A war of nine years, generally unfortunate, unsatisfactory in its result, carried on at a cost unknown to former times, amidst the decay of trade, the exhaustion of resources, the decline, as there seems good reason to believe, of population itself, was the festering wound that turned a people's gratitude into factiousness and treachery. It was easy to excite the national prejudices against campaigns in Flanders, especially when so unsuccessful, and to inveigh against the neglect of our maritime power. Yet, unless we could have been secure against invasion, which Louis would infallibly have attempted, had not his whole force been occupied by the grand alliance, and which, in the feeble condition of our navy and commerce, at one time could not have been impracticable, the defeats of Steenkirk and Landen might probably have been sustained at home. The war of 1689, and the great confederacy of Europe, which William alone could animate with any steadiness and energy, were most evidently and undeniably the means of preserving the independence of England. That danger, which has sometimes been in our countrymen's mouths with little meaning, of becoming a province to France, was then close and actual; for I hold the restoration of the house of Stuart to be but another expression for that ignominy and servitude.

_Expenses of the war._--The expense therefore of this war must not be reckoned unnecessary; nor must we censure the government for that small portion of our debt which it was compelled to entail on posterity.[198] It is to the honour of William's administration, and of his parliaments, not always clear-sighted, but honest and zealous for the public weal, that they deviated so little from the praiseworthy, though sometimes impracticable, policy of providing a revenue commensurate with the annual expenditure. The supplies annually raised during the war were about five millions, more than double the revenue of James II. But a great decline took place in the produce of the taxes by which that revenue was levied. In 1693, the customs had dwindled to less than half their amount before the revolution, the excise duties to little more than half.[199] This rendered heavy impositions on land inevitable; a tax always obnoxious, and keeping up disaffection in the most powerful class of the community. The first land-tax was imposed in 1690, at the rate of three shillings in the pound on the rental; and it continued ever afterwards to be annually granted, at different rates, but commonly at four shillings in the pound, till it was made perpetual in 1798. A tax of twenty per cent. might well seem grievous; and the notorious inequality of the assessment in different counties tended rather to aggravate the burthen upon those whose contribution was the fairest. Fresh schemes of finance were devised, and, on the whole, patiently borne by a jaded people. The Bank of England rose under the auspices of the whig party, and materially relieved the immediate exigencies of the government, while it palliated the general distress, by discounting bills and lending money at an easier rate of interest. Yet its notes were depreciated twenty per cent. in exchange for silver; and exchequer tallies at least twice as much, till they were funded at an interest of eight per cent.[200] But, these resources generally falling very short of calculation, and being anticipated at such an exorbitant discount, a constantly increasing deficiency arose; and public credit sunk so low, that about the year 1696 it was hardly possible to pay the fleet and army from month to month, and a total bankruptcy seemed near at hand. These distresses again were enhanced by the depreciation of the circulating coin, and by the bold remedy of a re-coinage, which made the immediate stagnation of commerce more complete. The mere operation of exchanging the worn silver coin for the new, which Mr. Montague had the courage to do without lowering the standard, cost the government two millions and a half. Certainly the vessel of our commonwealth has never been so close to shipwreck as in this period; we have seen the storm raging in still greater terror round our heads, but with far stouter planks and tougher cables to confront and ride through it.

Those who accused William of neglecting the maritime force of England, knew little what they said, or cared little about its truth.[201] A soldier and a native of Holland, he naturally looked to the Spanish Netherlands as the theatre on which the battle of France and Europe was to be fought. It was by the possession of that country and its chief fortresses that Louis aspired to hold Holland in vassalage, to menace the coasts of England, and to keep the Empire under his influence. And if, with the assistance of those brave regiments, who learned, in the well-contested though unfortunate battles of that war, the skill and discipline which made them conquerors in the next, it was found that France was still an overmatch for the allies, what would have been effected against her by the decrepitude of Spain, the perverse pride of Austria, and the selfish disunion of Germany? The commerce of France might, perhaps, have suffered more by an exclusively maritime warfare; but we should have obtained this advantage, which in itself is none, and would not have essentially crippled her force, at the price of abandoning to her ambition the quarry it had so long in pursuit. Meanwhile the naval annals of this war added much to our renown; Russell, glorious in his own despite at La Hogue, Rooke, and Shovel kept up the honour of the English flag. After that great victory, the enemy never encountered us in battle; and the wintering of the fleet at Cadiz in 1694, a measure determined on by William's energetic mind, against the advice of his ministers, and in spite of the fretful insolence of the admiral, gave us so decided a pre-eminence both in the Atlantic and Mediterranean seas, that it is hard to say what more could have been achieved by the most exclusive attention to the navy.[202] It is true that, especially during the first part of the war, vast losses were sustained through the capture of merchant ships; but this is the inevitable lot of a commercial country, and has occurred in every war, until the practice of placing the traders under convoy of armed ships was introduced. And, when we consider the treachery which pervaded this service, and the great facility of secret intelligence which the enemy possessed, we may be astonished that our failures and losses were not still more decisive.

_Treaty of Ryswick._--The treaty of Ryswick was concluded on at least as fair terms as almost perpetual ill fortune could warrant us to expect. It compelled Louis XIV. to recognise the king's title, and thus both humbled the court of St. Germains, and put an end for several years to its intrigues. It extinguished, or rather the war itself had extinguished, one of the bold hopes of the French court, the scheme of procuring the election of the dauphin to the empire. It gave at least a breathing time to Europe, so long as the feeble lamp of Charles II.'s life should continue to glimmer, during which the fate of his vast succession might possibly be regulated without injury to the liberties of Europe.[203] But to those who looked with the king's eyes on the prospects of the continent, this pacification could appear nothing else than a preliminary armistice of vigilance and preparation. He knew that the Spanish dominions, or at least as large a portion of them as could be grasped by a powerful arm, had been for more than thirty years the object of Louis XIV. The acquisitions of that monarch at Aix-la-Chapelle and Nimeguen had been comparatively trifling, and seem hardly enough to justify the dread that Europe felt of his aggressions. But in contenting himself for the time with a few strong towns, or a moderate district, he constantly kept in view the weakness of the King of Spain's constitution. The queen's renunciation of her right of succession was invalid in the jurisprudence of his court. Sovereigns, according to the public law of France, uncontrollable by the rights of others, were incapable of limiting their own. They might do all things but guarantee the privileges of their subjects or the independence of foreign states. By the Queen of France's death, her claim upon the inheritance of Spain was devolved upon the dauphin; so that ultimately, and virtually in the first instance, the two great monarchies would be consolidated, and a single will would direct a force much more than equal to all the rest of Europe. If we admit that every little oscillation in the balance of power has sometimes been too minutely regarded by English statesmen, it would be absurd to contend, that such a subversion of it as the union of France and Spain under one head did not most seriously threaten both the independence of England and Holland.

_Jealousy of the Commons._--The House of Commons which sat at the conclusion of the treaty of Ryswick, chiefly composed of whigs, and having zealously co-operated in the prosecution of the late war, could not be supposed lukewarm in the cause of liberty, or indifferent to the aggrandisement of France. But the nation's exhausted state seemed to demand an intermission of its burthens, and revived the natural and laudable disposition to frugality which had characterised in all former times an English parliament. The arrears of the war, joined to loans made during its progress, left a debt of about seventeen millions, which excited much inquietude, and evidently could not be discharged but by steady retrenchment and uninterrupted peace. But, besides this, a reluctance to see a standing army established prevailed among the great majority both of whigs and tories. It was unknown to their ancestors--this was enough for one party; it was dangerous to liberty--this alarmed the other. Men of ability and honest intention, but, like most speculative politicians of the sixteenth and seventeenth centuries, rather too fond of seeking analogies in ancient history, influenced the public opinion by their writings, and carried too far the undeniable truth, that a large army at the mere control of an ambitious prince may often overthrow the liberties of a people.[204] It was not sufficiently remembered that the bill of rights, the annual mutiny bill, the necessity of annual votes of supply for the maintenance of a regular army, besides, what was far more than all, the publicity of all acts of government, and the strong spirit of liberty burning in the people, had materially diminished a danger which it would not be safe entirely to contemn.

_Army reduced._--Such, however, was the influence of what may be called the constitutional antipathy of the English in that age to a regular army, that the Commons, in the first session after the peace, voted that all troops raised since 1680 should be disbanded, reducing the forces to about 7000 men, which they were with difficulty prevailed upon to augment to 10,000.[205] They resolved at the same time that, "in a just sense and acknowledgment of what great things his majesty has done for these kingdoms, a sum not exceeding £700,000 be granted to his majesty during his life, for the support of the civil list." So ample a gift from an impoverished nation is the strongest testimony of their affection to the king.[206] But he was justly disappointed by the former vote, which, in the hazardous condition of Europe, prevented this country from wearing a countenance of preparation, more likely to avert than to bring on a second conflict. He permitted himself, however, to carry this resentment too far, and lost sight of that subordination to the law which is the duty of an English sovereign, when he evaded compliance with this resolution of the Commons, and took on himself the unconstitutional responsibility of leaving sealed orders, when he went to Holland, that 16,000 men should be kept up, without the knowledge of his ministers, which they as unconstitutionally obeyed. In the next session a new parliament having been elected, full of men strongly imbued with what the courtiers styled commonwealth principles, or an extreme jealousy of royal power,[207] it was found impossible to resist a diminution of the army to 7000 troops.[208] These too were voted to be natives of the British dominions; and the king incurred the severest mortification of his reign, in the necessity of sending back his regiments of Dutch guards and French refugees. The messages that passed between him and the parliament bear witness how deeply he felt, and how fruitlessly he deprecated, this act of unkindness and ingratitude, so strikingly in contrast with the deference that parliament has generally shown to the honours and prejudices of the Crown in matters of far higher moment.[209] The foreign troops were too numerous, and it would have been politic to conciliate the nationality of the multitude by reducing their number; yet they had claims which a grateful and generous people should not have forgotten: they were, many of them, the chivalry of protestantism, the Huguenot gentlemen who had lost all but their swords in a cause which we deemed our own; they were the men who had terrified James from Whitehall, and brought about a deliverance, which, to speak plainly, we had neither sense nor courage to achieve for ourselves, or which at least we could never have achieved without enduring the convulsive throes of anarchy.

_Irish forfeitures resumed._--There is, if not mere apology for the conduct of the Commons, yet more to censure on the king's side, in another scene of humiliation which he passed through, in the business of the Irish forfeitures. These confiscations of the property of those who had fought on the side of James, though, in a legal sense, at the Crown's disposal, ought undoubtedly to have been applied to the public service. It was the intention of parliament that two-thirds at least of these estates should be sold for that purpose; and William had, in answer to an address (Jan. 1690) promised to make no grant of them till the matter should be considered in the ensuing session. Several bills were brought in to carry the original resolutions into effect, but, probably through the influence of government, they always fell to the ground in one or other house of parliament. Meanwhile the king granted away the whole of these forfeitures, about a million of acres, with a culpable profuseness, to the enriching of his personal favourites, such as the Earl of Portland and the Countess of Orkney.[210] Yet as this had been done in the exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for resumption of grants were obsolete, and from bad times. It was agreed on all hands that the royal domain is not inalienable; if this were a mischief, as could not perhaps be doubted, it was one that the legislature had permitted with open eyes till there was nothing left to be alienated. Acts therefore of this kind shake the general stability of possession, and destroy that confidence in which the practical sense of freedom consists, that the absolute power of the legislature, which in strictness is as arbitrary in England as in Persia, will be exercised in consistency with justice and lenity. They are also accompanied for the most part, as appears to have been the case in this instance of the Irish forfeitures, with partiality and misrepresentation as well as violence, and seldom fail to excite an odium far more than commensurate to the transient popularity which attends them at the outset.[211]

But, even if the resumption of William's Irish grants could be reckoned defensible, there can be no doubt that the mode adopted by the Commons, of tacking, as it was called, the provisions for this purpose to a money bill, so as to render it impossible for the Lords even to modify them without depriving the king of his supply, tended to subvert the constitution and annihilate the rights of a co-equal house of parliament. This most reprehensible device, though not an unnatural consequence of their pretended right to an exclusive concern in money bills, had been employed in a former instance during this reign.[212] They were again successful on this occasion; the Lords receded from their amendments, and passed the bill at the king's desire, who perceived that the fury of the Commons was tending to a terrible convulsion.[213] But the precedent was infinitely dangerous to their legislative power. If the Commons, after some more attempts of the same nature, desisted from so unjust an encroachment, it must be attributed to that which has been the great preservative of the equilibrium in our government, the public voice of a reflecting people, averse to manifest innovation, and soon offended by the intemperance of factions.

_Parliamentary enquiries._--The essential change which the fall of the old dynasty had wrought in our constitution displayed itself in such a vigorous spirit of enquiry and interference of parliament with all the course of government as, if not absolutely new, was more uncontested and more effectual than before the revolution. The Commons indeed under Charles II. had not wholly lost sight of the precedents which the long parliament had established for them; but not without continual resistance from the court, in which their right of examination was by no means admitted. But the tories throughout the reign of William evinced a departure from the ancient principles of their faction in nothing more than in asserting to the fullest extent the powers and privileges of the Commons; and, in the coalition they formed with the malcontent whigs, if the men of liberty adopted the nickname of the men of prerogative, the latter did not less take up the maxims and feelings of the former. The bad success and suspected management of public affairs co-operated with the strong spirit of party to establish this important accession of authority to the House of Commons. In June 1689, a special committee was appointed to enquire into the miscarriages of the war in Ireland, especially as to the delay in relieving Londonderry. A similar committee was appointed in the Lords. The former reported severely against Colonel Lundy, governor of that city; and the house addressed the king, that he might be sent over to be tried for the treasons laid to his charge.[214] I do not think there is any earlier precedent in the Journals for so specific an enquiry into the conduct of a public officer, especially one in military command. It marks therefore very distinctly the change of spirit which I have so frequently mentioned. No courtier has ever since ventured to deny this general right of enquiry, though it is the constant practice to elude it. The right to enquire draws with it the necessary means, the examination of witnesses, records, papers, enforced by the strong arm of parliamentary privilege. In one respect alone these powers have fallen rather short; the Commons do not administer an oath; and having neglected to claim this authority in the irregular times when they could make a privilege by a vote, they would now perhaps find difficulty in obtaining it by consent of the house of peers. They renewed this committee for enquiring into the miscarriages of the war in the next session.[215] They went very fully into the dispute between the board of admiralty and Admiral Russell, after the battle of La Hogue;[216] and the year after investigated the conduct of his successors, Killigrew and Delaval, in the command of the Channel Fleet.[217] They went, in the winter of 1694, into a very long examination of the admirals and the orders issued by the admiralty during the preceding year; and then voted that the sending the fleet to the Mediterranean, and the continuing it there this winter, has been to the honour and interest of his majesty, and his kingdoms.[218] But it is hardly worth while to enumerate later instances of exercising a right which had become indisputable, and, even before it rested on the basis of precedent, could not reasonably be denied to those who might advise, remonstrate, and impeach.

It is not surprising that, after such important acquisitions of power, the natural spirit of encroachment, or the desire to distress a hostile government, should have led to endeavours, which by their success would have drawn the executive administration more directly into the hands of parliament. A proposition was made by some peers, in December 1692, for a committee of both houses to consider of the present state of the nation, and what advice should be given to the king concerning it. This dangerous project was lost by 48 to 36, several tories and dissatisfied whigs uniting in a protest against its rejection.[219] The king had in his speech to parliament requested their advice in the most general terms; and this slight expression, though no more than is contained in the common writ of summons, was tortured into a pretext for so extraordinary a proposal as that of a committee of delegates, or council of state, which might soon have grasped the entire administration. It was at least a remedy so little according to precedent, or the analogy of our constitution, that some very serious cause of dissatisfaction with the conduct of affairs could be its only excuse.

Burnet has spoken with reprobation of another scheme engendered by the same spirit of enquiry and control, that of a council of trade, to be nominated by parliament, with powers for the effectual preservation of the interests of the merchants. If the members of it were intended to be immovable, or if the vacancies were to be filled by consent of parliament, this would indeed have encroached on the prerogative in a far more eminent degree than the famous India bill of 1783, because its operation would have been more extensive and more at home. And, even if they were only named in the first instance, as has been usual in parliamentary commissioners of account or enquiry, it would still be material to ask, what extent of power for the preservation of trade was to be placed in their hands. The precise nature of the scheme is not explained by Burnet. But it appears by the Journals that this council was to receive information from merchants as to the necessity of convoys, and send directions to the board of admiralty, subject to the king's control, to receive complaints and represent the same to the king, and in many other respects to exercise very important and anomalous functions. They were not however to be members of the house. But even with this restriction, it was too hazardous a departure from the general maxims of the constitution.[220]

_Treaties of partition._--The general unpopularity of William's administration, and more particularly the reduction of the forces, afford an ample justification for the two treaties of partition which the tory faction, with scandalous injustice and inconsistency, turned to his reproach. No one could deny that the aggrandisement of France by both of these treaties was of serious consequence. But, according to English interests, the first object was to secure the Spanish Netherlands from becoming provinces of that power; and next to maintain the real independence of Spain and the Indies. Italy was but the last in order; and though the possession of Naples and Sicily, with the ports of Tuscany, as stipulated in the treaty of partition, would have rendered France absolute mistress of that whole country and of the Mediterranean sea, and essentially changed the balance of Europe, it was yet more tolerable than the acquisition of the whole monarchy in the name of a Bourbon prince, which the opening of the succession without previous arrangement was likely to produce. They at least who shrunk from the thought of another war, and studiously depreciated the value of continental alliances, were the last who ought to have exclaimed against a treaty which had been ratified as the sole means of giving us something like security, without the cost of fighting for it. Nothing therefore could be more unreasonable than the clamour of a tory House of Commons in 1701 (for the malcontent whigs were now so consolidated with the tories as in general to bear their name) against the partition treaties; nothing more unfair than the impeachment of the four lords, Portland, Orford, Somers, and Halifax, on that account. But we must at the same time remark, that it is more easy to vindicate the partition treaties themselves, than to reconcile the conduct of the king and of some others with the principles established in our constitution. William had taken these important negotiations wholly into his own hands, not even communicating them to any of his English ministers, except Lord Jersey, until his resolution was finally settled. Lord Somers, as chancellor, had put the great seal to blank powers, as a legal authority to the negotiators; which evidently could not be valid, unless on the dangerous principle that the seal is conclusive against all exception.[221] He had also sealed the ratification of the treaty, though not consulted upon it, and though he seems to have had objections to some of the terms; and in both instances he set up the king's command as a sufficient defence. The exclusion of all those whom, whether called privy or cabinet counsellors, the nation holds responsible for its safety, from this great negotiation, tended to throw back the whole executive government into the single will of the sovereign, and ought to have exasperated the House of Commons far more than the actual treaties of partition, which may probably have been the safest choice in a most perilous condition of Europe. The impeachments however were in most respects so ill substantiated by proof, that they have generally been reckoned a disgraceful instance of party spirit.[222]

_Improvements in constitution under William._--The whigs, such of them at least as continued to hold that name in honour, soon forgave the mistakes and failings of their great deliverer; and indeed a high regard for the memory of William III. may justly be reckoned one of the tests by which genuine whiggism, as opposed both to tory and republican principles, has always been recognised. By the opposite party he was rancorously hated; and their malignant calumnies still sully the stream of history.[223] Let us leave such as prefer Charles I. to William III. in the enjoyment of prejudices which are not likely to be overcome by argument. But it must ever be an honour to the English Crown that it has been worn by so great a man. Compared with him, the statesmen who surrounded his throne, the Sunderlands, Godolphins, and Shrewsburys, even the Somerses and Montagues, sink into insignificance. He was, in truth, too great, not for the times wherein he was called to action, but for the peculiar condition of a king of England after the revolution; and as he was the last sovereign of this country, whose understanding and energy of character have been very distinguished, so was he the last who has encountered the resistance of his parliament, or stood apart and undisguised in the maintenance of his own prerogative. His reign is no doubt one of the most important in our constitutional history, both on account of its general character, which I have slightly sketched, and of those beneficial alterations in our law to which it gave rise. These now call for our attention.

_Bill for triennial parliaments._--The enormous duration of seventeen years, for which Charles II. protracted his second parliament, turned the thoughts of all who desired improvements in the constitution towards some limitation on a prerogative which had not hitherto been thus abused. Not only the continuance of the same House of Commons during such a period destroyed the connection between the people and their representatives, and laid open the latter, without responsibility, to the corruption which was hardly denied to prevail; but the privilege of exemption from civil process made needy and worthless men secure against their creditors, and desirous of a seat in parliament as a complete safeguard to fraud and injustice. The term of three years appeared sufficient to establish a control of the electoral over the representative body, without recurring to the ancient but inconvenient scheme of annual parliaments, which men enamoured of a still more popular form of government than our own were eager to recommend. A bill for this purpose was brought into the House of Lords in December 1689, but lost by the prorogation.[224] It passed both houses early in 1693, the whigs generally supporting, and the tories opposing it; but on this, as on many other great questions of this reign, the two parties were not so regularly arrayed against each other as on points of a more personal nature.[225] To this bill the king refused his assent: an exercise of prerogative which no ordinary circumstances can reconcile either with prudence or with a constitutional administration of government. But the Commons, as it was easy to foresee, did not abandon so important a measure; a similar bill received the royal assent in November 1694.[226] By the triennial bill it was simply provided that every parliament should cease and determine within three years from its meeting. The clause contained in the act of Charles II. against the intermission of parliaments for more than three years is repeated; but it was not thought necessary to revive the somewhat violent and perhaps impracticable provisions by which the act of 1641 had secured their meeting; it being evident that even annual sessions might now be relied upon as indispensable to the machine of government.

This annual assembly of parliament was rendered necessary, in the first place, by the strict appropriation of the revenue according to votes of supply. It was secured next, by passing the mutiny bill, under which the army is held together, and subjected to military discipline, for a short term, seldom or never exceeding twelve months. These are the two effectual securities against military power; that no pay can be issued to the troops without a previous authorisation by the Commons in a committee of supply, and by both houses in an act of appropriation; and that no officer or soldier can be punished for disobedience, nor any court martial held, without the annual re-enactment of the mutiny bill. Thus it is strictly true that, if the king were not to summon parliament every year, his army would cease to have a legal existence; and the refusal of either house to concur in the mutiny bill would at once wrest the sword out of his grasp. By the bill of rights, it is declared unlawful to keep any forces in time of peace without consent of parliament. This consent, by an invariable and wholesome usage, is given only from year to year; and its necessity may be considered perhaps the most powerful of those causes which have transferred so much even of the executive power into the management of the two houses of parliament.

_Law of treason._--The reign of William is also distinguished by the provisions introduced into our law for the security of the subject against iniquitous condemnations on the charge of high treason, and intended to perfect those of earlier times, which had proved insufficient against the partiality of judges. But upon this occasion it will be necessary to take up the history of our constitutional law on this important head from the beginning.

In the earlier ages of our law, the crime of high treason appears to have been of a vague and indefinite nature, determined only by such arbitrary construction as the circumstances of each particular case might suggest. It was held treason to kill the king's father or his uncle; and Mortimer was attainted for accroaching, as it was called, royal power; that is, for keeping the administration in his own hands, though without violence towards the reigning prince. But no people can enjoy a free constitution, unless an adequate security is furnished by their laws against this discretion of judges in a matter so closely connected with the mutual relation between the government and its subjects. A petition was accordingly presented to Edward III. by one of the best parliaments that ever sat, requesting that "whereas the king's justices in different counties adjudge men indicted before them to be traitors for divers matters not known by the Commons to be treasonable, the king would, by his council, and the nobles and learned men (les grands et sages) of the land, declare in parliament what should be held for treason." The answer to this petition is in the words of the existing statute, which, as it is by no means so prolix as it is important, I shall place before the reader's eyes.

_Statute of Edward III._--"Whereas divers opinions have been before this time in what case treason shall be said, and in what not; the king, at the request of the Lords and Commons, hath made a declaration in the manner as hereafter followeth; that is to say, when a man doth compass or imagine the death of our lord the king, of my lady his queen, or of their eldest son and heir: or if a man do violate the king's companion or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir: or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attainted of open deed by people of their condition; and if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lusheburg, or other like to the said money of England, knowing the money to be false, to merchandise or make payment in deceipt of our said lord the king and of his people; and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their place doing their offices; and it is to be understood, that in the cases above rehearsed, it ought to be judged treason which extends to our lord the king and his royal majesty. And of such treason the forfeiture of the escheats pertaineth to our lord the king, as well as the lands and tenements holden of others as of himself."[227]

_Its constructive interpretation._--It seems impossible not to observe that the want of distinct arrangement natural to so unphilosophical an age, and which renders many of our old statutes very confused, is eminently displayed in this strange conjunction of offences; where to counterfeit the king's seal, which might be for the sake of private fraud, and even his coin, which must be so, is ranged along with all that really endangers the established government, with conspiracy and insurrection. But this is an objection of little magnitude, compared with one that arises out of an omission in enumerating the modes whereby treason could be committed. In most other offences, the intention, however manifest, the contrivance, however deliberate, the attempt, however casually rendered abortive, form so many degrees of malignity, or at least of mischief, which the jurisprudence of most countries, and none more than England, formerly, has been accustomed to distinguish from the perpetrated action by awarding an inferior punishment, or even none at all. Nor is this distinction merely founded on a difference in the moral indignation with which we are impelled to regard an inchoate and a consummate crime, but is warranted by a principle of reason, since the penalties attached to the completed offence spread their terror over all the machinations preparatory to it; and he who fails in his stroke has had the murderer's fate as much before his eyes as the more dexterous assassin. But those who conspire against the constituted government connect in their sanguine hope the assurance of impunity with the execution of their crime, and would justly deride the mockery of an accusation which could only be preferred against them when their banners were unfurled, and their force arrayed. It is as reasonable, therefore, as it is conformable to the usages of every country, to place conspiracies against the sovereign power upon the footing of actual rebellion, and to crush those by the penalties of treason, who, were the law to wait for their opportunity, might silence or pervert the law itself. Yet in this famous statute we find it only declared treasonable to compass or imagine the king's death; while no project of rebellion appears to fall within the letter of its enactments, unless it ripen into a substantive act of levying war.

We may be, perhaps, less inclined to attribute this material omission to the laxity which has been already remarked to be usual in our older laws, than to apprehensions entertained by the barons that, if a mere design to levy war should be rendered treasonable, they might be exposed to much false testimony and arbitrary construction. But strained constructions of this very statute, if such were their aim, they did not prevent. Without adverting to the more extravagant convictions under this statute in some violent reigns, it gradually became an established doctrine with lawyers, that a conspiracy to levy war against the king's person, though not in itself a distinct treason, may be given in evidence as an overt act of compassing his death. Great as the authorities may be on which this depends, and reasonable as it surely is that such offences should be brought within the pale of high treason, yet it is almost necessary to confess that this doctrine appears utterly irreconcilable with any fair interpretation of the statute. It has indeed, by some, been chiefly confined to cases where the attempt meditated is directly against the king's person, for the purpose of deposing him, or of compelling him, while under actual duress, to a change of measures; and this was construed into a compassing of his death, since any such violence must endanger his life, and because, as has been said, the prisons and graves of princes are not very distant.[228] But it seems not very reasonable to found a capital conviction on such a sententious remark; nor is it by any means true that a design against a king's life is necessarily to be inferred from the attempt to get possession of his person. So far indeed is this from being a general rule, that in a multitude of instances, especially during the minority or imbecility of a king, the purposes of conspirators would be wholly defeated by the death of the sovereign whose name they designed to employ. But there is still less pretext for applying the same construction to schemes of insurrection, when the royal person is not directly the object of attack, and where no circumstance indicates any hostile intention towards his safety. This ample extention of so penal a statute was first given, if I am not mistaken, by the judges in 1663, on occasion of a meeting by some persons at Farley Wood in Yorkshire,[229] in order to concert measures for a rising. But it was afterwards confirmed in Harding's case, immediately after the revolution, and has been repeatedly laid down from the bench in subsequent proceedings for treason, as well as in treatises of very great authority.[230] It has therefore all the weight of established precedent; yet I question whether another instance can be found in our jurisprudence of giving so large a construction, not only to a penal but to any other statute.[231] Nor does it speak in favour of this construction, that temporary laws have been enacted on various occasions to render a conspiracy to levy war treasonable; for which purpose, according to this current doctrine, the statute of Edward III. needed no supplemental provision. Such acts were passed under Elizabeth, Charles II., and George III., each of them limited to the existing reign.[232] But it is very seldom that, in an hereditary monarchy, the reigning prince ought to be secured by any peculiar provisions; and though the remarkable circumstances of Elizabeth's situation exposed her government to unusual perils, there seems an air of adulation or absurdity in the two latter instances. Finally, the act of 57 G. 3, c. 6, has confirmed, if not extended, what stood on rather a precarious basis, and rendered perpetual that of 36 G. 3, c. 7, which enacts, "that, if any person or persons whatsoever, during the life of the king, and until the end of the next session of parliament after a demise of the Crown, shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same our sovereign lord the king, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of his majesty's dominions or countries, or to levy war against his majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, both houses, or either house of parliament, or to move or stir any foreigner or stranger with force to invade this realm, or any other his majesty's dominions or countries under the obeisance of his majesty, his heirs and successors; and such compassings, imaginations, inventions, devices, and intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed; being legally convicted thereof upon the oaths of two lawful and credible witnesses, shall be adjudged a traitor, and suffer as in cases of high treason."

This from henceforth will become our standard of constitutional law, instead of the statute of Edward III., the latterly received interpretations of which it sanctions and embodies. But it is to be noted as the doctrine of our most approved authorities, that a conspiracy for many purposes which, if carried into effect, would incur the guilt of treason, will not of itself amount to it. The constructive interpretation of compassing the king's death appears only applicable to conspiracies, whereof the intent is to depose or to use personal compulsion towards him, or to usurp the administration of his government.[233] But though insurrections in order to throw down all enclosures, to alter the established law or change religion, or in general for the reformation of alleged grievances of a public nature, wherein the insurgents have no special interest, are in themselves treasonable, yet the previous concert and conspiracy for such purpose could, under the statute of Edward III., only pass for a misdemeanour. Hence, while it has been positively laid down, that an attempt by intimidation and violence to force the repeal of a law is high treason,[234] though directed rather against the two houses of parliament than the king's person, the judges did not venture to declare that a mere conspiracy and consultation to raise a force for that purpose would amount to that offence.[235] But the statutes of 36 & 57 Geo. 3 determine the intention to levy war, in order to put any force upon or to intimidate either house of parliament, manifested by any overt act, to be treason, and so far have undoubtedly extended the scope of the law. We may hope that so ample a legislative declaration on the law of treason will put an end to the preposterous interpretations which have found too much countenance on some not very distant occasions. The crime of compassing and imagining the king's death must be manifested by some overt act; that is, there must be something done in execution of a traitorous purpose. For as no hatred towards the person of the sovereign, nor any longings for his death, are the imagination which the law here intends, it seems to follow that loose words or writings, in which such hostile feelings may be embodied, unconnected with any positive design, cannot amount to treason. It is now therefore generally agreed, that no words will constitute that offence, unless as evidence of some overt act of treason; and the same appears clearly to be the case with respect at least to unpublished writings.[236]

The second clause of the statute, or that which declares the levying of war against the king within the realm to be treason, has given rise, in some instances, to constructions hardly less strained than those upon compassing his death. It would indeed be a very narrow interpretation, as little required by the letter as warranted by the reason of this law, to limit the expression of levying war to rebellions, whereof the deposition of the sovereign, or subversion of his government, should be the deliberate object. Force, unlawfully directed against the supreme authority, constitutes this offence; nor could it have been admitted as an excuse for the wild attempt of the Earl of Essex, on this charge of levying war, that his aim was not to injure the queen's person, but to drive his adversaries from her presence. The only questions as to this kind of treason are; first, what shall be understood by force? and secondly, where it shall be construed to be directed against the government? And the solution of both these, upon consistent principles, must so much depend on the circumstances which vary the character of almost every case, that it seems natural to distrust the general maxims that have been delivered by lawyers. Many decisions in cases of treason before the revolution were made by men so servile and corrupt, they violate so grossly all natural right and all reasonable interpretation of law, that it has generally been accounted among the most important benefits of that event to have restored a purer administration of criminal justice. But, though the memory of those who pronounced these decisions is stigmatised, their authority, so far from being abrogated, has influenced later and better men; and it is rather an unfortunate circumstance, that precedents which, from the character of the times when they occurred, would lose at present all respect, having been transfused into text-books, and formed perhaps the sole basis of subsequent decisions, are still in not a few points the invisible foundation of our law. No lawyer, I conceive, prosecuting for high treason in this age, would rely on the case of the Duke of Norfolk under Elizabeth, or that of Williams under James I., or that of Benstead under Charles I.; but he would certainly not fail to dwell on the authorities of Sir Edward Coke and Sir Matthew Hale. Yet these eminent men, and especially the latter, aware that our law is mainly built on adjudged precedent, and not daring to reject that which they would not have themselves asserted, will be found to have rather timidly exercised their judgment in the construction of this statute, yielding a deference to former authority which we have transferred to their own.

These observations are particularly applicable to that class of cases so repugnant to the general understanding of mankind, and, I believe, of most lawyers, wherein trifling insurrections for the purpose of destroying brothels or meeting-houses have been held treasonable under the clause of levying war. Nor does there seem any ground for the defence which has been made for this construction, by taking a distinction, that although a rising to effect a partial end by force is only a riot, yet where a general purpose of the kind is in view it becomes rebellion; and thus, though to pull down the enclosures in a single manor be not treason against the king, yet to destroy all enclosures throughout the kingdom would be an infringement of his sovereign power. For, however solid this distinction may be, yet in the class of cases to which I allude, this general purpose was neither attempted to be made out in evidence, nor rendered probable by the circumstances; nor was the distinction ever taken upon the several trials. A few apprentices rose in London in the reign of Charles II., and destroyed some brothels.[237] A mob of watermen and others, at the time of Sacheverell's impeachment, set on fire several dissenting meeting-houses.[238] Everything like a formal attack on the established government is so much excluded in these instances by the very nature of the offence and the means of the offenders, that it is impossible to withhold our reprobation from the original decision, upon which, with too much respect for unreasonable and unjust authority, the later cases have been established. These indeed still continue to be cited as law; but it is much to be doubted whether a conviction for treason will ever again be obtained, or even sought for, under similar circumstances. One reason indeed for this, were there no weight in any other, might suffice; the punishment of tumultuous risings, attended with violence, has been rendered capital by the riot act of George I. and other statutes; so that, in the present state of the law, it is generally more advantageous for the government to treat such an offence as felony than as treason.

_Statute of William III._--It might for a moment be doubted, upon the statute of Edward VI., whether the two witnesses whom the act requires must not depose to the same overt acts of treason. But, as this would give an undue security to conspirators, so it is not necessarily implied by the expression; nor would it be indeed the most unwarrantable latitude that has been given to this branch of penal law, to maintain that two witnesses to any distinct acts comprised in the same indictment would satisfy the letter of this enactment. But a more wholesome distinction appears to have been taken before the revolution, and is established by the statute of William, that, although different overt acts may be proved by two witnesses, they must relate to the same species of treason, so that one witness to an alleged act of compassing the king's death cannot be conjoined with another deposing to an act of levying war, in order to make up the required number.[239] As for the practice of courts of justice before the restoration, it was so much at variance with all principles, that few prisoners were allowed the benefit of this statute;[240] succeeding judges fortunately deviated more from their predecessors in the method of conducting trials than they have thought themselves at liberty to do in laying down rules of law.

Nothing had brought so much disgrace on the councils of government and on the administration of justice, nothing had more forcibly spoken the necessity of a great change than the prosecutions for treason during the latter years of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroboration of some more explicit law; and some peculiar securities were demanded for innocence against that conspiracy of the court with the prosecutor, which is so much to be dreaded in all trials for political crimes. Hence the attainders of Russell, Sidney, Cornish, and Armstrong were reversed by the convention-parliament without opposition; and men attached to liberty and justice, whether of the whig or tory name, were anxious to prevent any future recurrence of those iniquitous proceedings, by which the popular frenzy at one time, the wickedness of the court at another, and in each instance with the co-operation of a servile bench of judges, had sullied the honour of English justice. A better tone of political sentiment had begun indeed to prevail, and the spirit of the people must ever be a more effectual security than the virtue of the judges; yet, even after the revolution, if no unjust or illegal convictions in cases of treason can be imputed to our tribunals, there was still not a little of that rudeness towards the prisoner, and manifestation of a desire to interpret all things to his prejudice, which had been more grossly displayed by the bench under Charles II. The jacobites, against whom the law now directed its terrors, as loudly complained of Treby and Pollexfen, as the whigs had of Scroggs and Jefferies, and weighed the convictions of Ashton and Anderton against those of Russell and Sidney.[241]

Ashton was a gentleman, who, in company with Lord Preston, was seized in endeavouring to go over to France with an invitation from the jacobite party. The contemporary writers on that side, and some historians who incline to it, have represented his conviction as grounded upon insufficient, because only upon presumptive evidence. It is true that in most of our earlier cases of treason, treasonable facts have been directly proved; whereas it was left to the jury in that of Ashton, whether they were satisfied of his acquaintance with the contents of certain papers taken on his person. There does not however seem to be any reason why presumptive inferences are to be rejected in charges of treason, or why they should be drawn with more hesitation than in other grave offences; and if this be admitted, there can be no doubt that the evidence against Ashton was such as is ordinarily reckoned conclusive. It is stronger than that offered for the prosecution against O'Quigley at Maidstone in 1798, a case of the closest resemblance; and yet I am not aware that the verdict in that instance was thought open to censure. No judge however in modern times would question, much less reply upon, the prisoner, as to material points of his defence, as Holt and Pollexfen did in this trial; the practice of a neighbouring kingdom, which, in our more advanced sense of equity and candour, we are agreed to condemn.[242]

It is perhaps less easy to justify the conduct of Chief-Justice Treby in the trial of Anderton for printing a treasonable pamphlet. The testimony came very short of satisfactory proof, according to the established rules of English law, though by no means such as men in general would slight. It chiefly consisted of a comparison between the characters of a printed work found concealed in his lodgings and certain types belonging to his press; a comparison manifestly less admissible than that of handwriting, which is always rejected, and indeed totally inconsistent with the rigour of English proof. Besides the common objections made to a comparison of hands, and which apply more forcibly to printed characters, it is manifest that types cast in the same font must always be exactly similar. But, on the other hand, it seems unreasonable absolutely to exclude, as our courts have done, the comparison of handwriting as inadmissible evidence; a rule which is every day eluded by fresh rules, not much more rational in themselves, which have been invented to get rid of its inconvenience. There seems however much danger in the construction which draws printed libels, unconnected with any conspiracy, within the pale of treason, and especially the treason of compassing the king's death, unless where they directly tended to his assassination. No later authority can, as far as I remember, be adduced for the prosecution of any libel as treasonable, under the statute of Edward III. But the pamphlet for which Anderton was convicted was certainly full of the most audacious jacobitism, and might perhaps fall, by no unfair construction, within the charge of adhering to the king's enemies; since no one could be more so than James, whose design of invading the realm had been frequently avowed by himself.[243]

A bill for regulating trials upon charges of high treason passed the Commons with slight resistance by the Crown lawyers in 1691.[244] The Lords introduced a provision in their own favour, that upon the trial of a peer in the court of the high steward, all such as were entitled to vote should be regularly summoned; it having been the practice to select twenty-three at the discretion of the Crown. Those who wished to hinder the bill availed themselves of the jealousy which the Commons in that age entertained of the upper house of parliament, and persuaded them to disagree with this just and reasonable amendment.[245] It fell to the ground therefore on this occasion; and though more than once revived in subsequent sessions, the same difference between the two houses continued to be insuperable.[246] In the new parliament that met in 1695, Commons had the good sense to recede from an irrational jealousy. Notwithstanding the reluctance of the ministry, for which perhaps the very dangerous position of the king's government furnishes an apology, this excellent statute was enacted as an additional guarantee (in such bad times as might again occur) to those who are prominent in their country's cause, against the great danger of false accusers and iniquitous judges.[247] It provides that all persons indicted for high treason shall have a copy of their indictment delivered to them five days before their trial, a period extended by a subsequent act to ten days, and a copy of the panel of jurors two days before their trial; that they shall be allowed to have their witnesses examined on oath, and to make their defence by counsel. It clears up any doubt that could be pretended on the statute of Edward VI., by requiring two witnesses, either both to the same overt act, or the first to one, the second to another overt act of the same treason (that is, the same kind of treason), unless the party shall voluntarily confess the charge.[248] It limits prosecutions for treason to the term of three years, except in the case of an attempted assassination on the king. It includes the contested provision for the trial of peers by all who have a right to sit and vote in parliament. A later statute, 7 Anne, c. 21, which may be mentioned here as the complement of the former, has added a peculiar privilege to the accused, hardly less material than any of the rest. Ten days before the trial, a list of the witnesses intended to be brought for proving the indictment, with their professions and place of abode, must be delivered to the prisoner, along with the copy of the indictment. The operation of this clause was suspended till after the death of the pretended Prince of Wales.

Notwithstanding a hasty remark of Burnet, that the design of this bill seemed to be to make men as safe in all treasonable practices as possible, it ought to be considered a valuable accession to our constitutional law; and no part, I think, of either statute will be reckoned inexpedient, when we reflect upon the history of all nations, and more especially of our own. The history of all nations, and more especially of our own, in the fresh recollection of those who took a share in these acts, teaches us that false accusers are always encouraged by a bad government, and may easily deceive a good one. A prompt belief in the spies whom they perhaps necessarily employ, in the voluntary informers who dress up probable falsehoods, is so natural and constant in the offices of ministers, that the best are to be heard with suspicion when they bring forward such testimony. One instance, at least, had occurred since the revolution, of charges unquestionably false in their specific details, preferred against men of eminence by impostors who panted for the laurels of Oates and Turberville.[249] And, as men who are accused of conspiracy against a government are generally such as are beyond question disaffected to it, the indiscriminating temper of the prejudging people, from whom juries must be taken, is as much to be apprehended, when it happens to be favourable to authority, as that of the government itself; and requires as much the best securities, imperfect as the best are, which prudence and patriotism can furnish to innocence. That the prisoner's witnesses should be examined on oath will of course not be disputed, since by a subsequent statute that strange and unjust anomaly in our criminal law has been removed in all cases as well as in treason; but the judges had sometimes not been ashamed to point out to the jury, in derogation of the credit of those whom a prisoner called in his behalf, that they were not speaking under the same sanction as those for the Crown. It was not less reasonable that the defence should be conducted by counsel; since that excuse which is often made for denying the assistance of counsel on charges of felony, namely, the moderation of prosecutors and the humanity of the bench, could never be urged in those political accusations wherein the advocates for the prosecution contend with all their strength for victory; and the impartiality of the court is rather praised when it is found than relied upon beforehand.[250] Nor does there lie any sufficient objection even to that which many dislike, the furnishing a list of the witnesses to the prisoner, when we set on the other side the danger of taking away innocent lives by the testimony of suborned and infamous men, and remember also that a guilty person can rarely be ignorant of those who will bear witness against him; or if he could, that he may always discover those who have been examined before the grand jury, and that no others can in any case be called on the trial.

The subtlety of Crown lawyers in drawing indictments for treason, and the willingness of judges to favour such prosecutions, have considerably eluded the chief difficulties which the several statutes appear to throw in their way. The government has at least had no reason to complain that the construction of those enactments has been too rigid. The overt acts laid in the indictment are expressed so generally that they give sometimes little insight into the particular circumstances to be adduced in evidence; and, though the act of William is positive that no evidence shall be given of any overt act not laid in the indictment, it has been held allowable, and is become the constant practice, to bring forward such evidence, not as substantive charges, but on the pretence of its tending to prove certain other acts specially alleged. The disposition to extend a constructive interpretation to the statute of Edward III. has continued to increase; and was carried, especially by Chief-Justice Eyre in the trials of 1794, to a length at which we lose sight altogether of the plain meaning of words, and apparently much beyond what Pemberton, or even Jefferies, had reached. In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern whether the great principle of our law, requiring two witnesses to overt acts, has been adhered to; for certainly it is not adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is immediately deducible.[251] There can be no doubt that state prosecutions have long been conducted with an urbanity and exterior moderation unknown to the age of the Stuarts, or even to that of William; but this may by possibility be compatible with very partial wrestling of the law, and the substitution of a sort of political reasoning for that strict interpretation of penal statutes which the subject has a right to demand. No confidence in the general integrity of a government, much less in that of its lawyers, least of all any belief in the guilt of an accused person, should beguile us to remit that vigilance which is peculiarly required in such circumstances.[252]

For this vigilance, and indeed for almost all that keeps up in us, permanently and effectually, the spirit of regard to liberty and the public good, we must look to the unshackled and independent energies of the press. In the reign of William III., and through the influence of the popular principle in our constitution, this finally became free. The licensing act, suffered to expire in 1679, was revived in 1685 for seven years. In 1692, it was continued till the end of the session of 1693. Several attempts were afterwards made to renew its operation, which the less courtly whigs combined with the tories and jacobites to defeat.[253] Both parties indeed employed the press with great diligence in this reign; but while one degenerated into malignant calumny and misrepresentation, the signal victory of liberal principles is manifestly due to the boldness and eloquence with which they were promulgated. Even during the existence of a censorship, a host of unlicensed publications, by the negligence or connivance of the officers employed to seize them, bore witness to the inefficacy of its restrictions. The bitterest invectives of jacobitism were circulated in the first four years after the revolution.[254]

_Liberty of the press._--The liberty of the press consists, in a strict sense, merely in an exemption from the superintendence of a licenser. But it cannot be said to exist in any security, or sufficiently for its principal ends, where discussions of a political or religious nature, whether general or particular, are restrained by too narrow and severe limitations. The law of libel has always been indefinite; an evil probably beyond any complete remedy, but which evidently renders the liberty of free discussion rather more precarious in its exercise than might be wished. It appears to have been the received doctrine in Westminster Hall before the revolution, that no man might publish a writing reflecting on the government, nor upon the character, or even capacity and fitness, of any one employed in it. Nothing having passed to change the law, the law remained as before. Hence in the case of Tutchin, it is laid down by Holt, that to possess the people with an ill opinion of the government, that is, of the ministry, is a libel. And the attorney-general, in his speech for the prosecution, urges that there can be no reflection on those that are in office under her majesty, but it must cast some reflection on the queen who employs them. Yet in this case the censure upon the administration, in the passages selected for prosecution, was merely general, and without reference to any person, upon which the counsel for Tutchin vainly relied.[255]

It is manifest that such a doctrine was irreconcilable with the interests of any party out of power, whose best hope to regain it is commonly by prepossessing the nation with a bad opinion of their adversaries. Nor would it have been possible for any ministry to stop the torrent of a free press, under the secret guidance of a powerful faction, by a few indictments for libel. They found it generally more expedient and more agreeable to borrow weapons from the same armoury, and retaliate with unsparing invective and calumny. This was first practised (first, I mean, with the avowed countenance of government) by Swift in the _Examiner_, and some of his other writings. And both parties soon went such lengths in this warfare that it became tacitly understood that the public characters of statesmen, and the measures of administration, are the fair topics of pretty severe attacks. Less than this indeed would not have contented the political temper of the nation, gradually and without intermission becoming more democratical, and more capable, as well as more accustomed, to judge of its general interests, and of those to whom they were intrusted. The just limit between political and private censure has been far better drawn in these later times, licentious as we still may justly deem the press, than in an age when courts of justice had not deigned to acknowledge, as they do at present, its theoretical liberty. No writer, except of the most broken reputation, would venture at this day on the malignant calumnies of Swift.

_Law of libel._--Meanwhile the judges naturally adhered to their established doctrine; and, in prosecutions for political libels, were very little inclined to favour what they deemed the presumption, if not the licentiousness, of the press. They advanced a little farther than their predecessors; and, contrary to the practice both before and after the revolution, laid it down at length as an absolute principle, that falsehood, though always alleged in the indictment, was not essential to the guilt of the libel; refusing to admit its truth to be pleaded, or given in evidence, or even urged by way of mitigation of punishment.[256] But as the defendant could only be convicted by the verdict of a jury, and jurors both partook of the general sentiment in favour of free discussion, and might in certain cases have acquired some prepossessions as to the real truth of the supposed libel, which the court's refusal to enter upon it could not remove, they were often reluctant to find a verdict of guilty; and hence arose by degrees a sort of contention which sometimes showed itself upon trials, and divided both the profession of the law and the general public. The judges and lawyers, for the most part, maintained that the province of the jury was only to determine the fact of publication; and also whether what are called the innuendoes were properly filled up, that is, whether the libel meant that which it was alleged in the indictment to mean, not whether such meaning were criminal or innocent, a question of law which the court were exclusively competent to decide. That the jury might acquit at their pleasure was undeniable; but it was asserted that they would do so in violation of their oaths and duty, if they should reject the opinion of the judge by whom they were to be guided as to the general law. Others of great name in our jurisprudence, and the majority of the public at large, conceiving that this would throw the liberty of the press altogether into the hands of the judges, maintained that the jury had a strict right to take the whole matter into their consideration, and determine the defendant's criminality or innocence according to the nature and circumstances of the publication. This controversy, which perhaps hardly arose within the period to which the present work relates, was settled by Mr. Fox's libel bill in 1792. It declares the right of the jury to find a general verdict upon the whole matter; and though, from causes easy to explain, it is not drawn in the most intelligible and consistent manner, was certainly designed to turn the defendant's intention, as it might be laudable or innocent, seditious or malignant, into a matter of fact for their enquiry and decision.

_Religious toleration._--The revolution is justly entitled to honour as the era of religious, in a far greater degree than of civil liberty; the privileges of conscience having had no earlier magna charta and petition of right whereto they could appeal against encroachment. Civil, indeed, and religious liberty had appeared, not as twin sisters and co-heirs, but rather in jealous and selfish rivalry; it was in despite of the law, it was through infringement of the constitution, by the court's connivance, by the dispensing prerogative, by the declarations of indulgence under Charles and James, that some respite had been obtained from the tyranny which those who proclaimed their attachment to civil rights had always exercised against one class of separatists, and frequently against another.

At the time when the test law was enacted, chiefly with a view against popery, but seriously affecting the protestant nonconformists, it was the intention of the House of Commons to afford relief to the latter by relaxing in some measure the strictness of the act of uniformity in favour of such ministers as might be induced to conform, by granting an indulgence of worship to those who should persist in their separation. This bill however dropped in that session. Several more attempts at an union were devised by worthy men of both parties in that reign, but with no success. It was the policy of the court to withstand a comprehension of dissenters; nor would the bishops admit of any concession worth the others' acceptance. The high-church party would not endure any mention of indulgence.[257] In the parliament of 1680, a bill to relieve protestant dissenters from the penalties of the 35th of Elizabeth, the most severe act in force against them, having passed both houses, was lost off the table of the House of Lords, at the moment that the king came to give his assent; an artifice by which he evaded the odium of an explicit refusal.[258] Meanwhile the nonconforming ministers, and in many cases their followers, experienced a harassing persecution under the various penal laws that oppressed them; the judges, especially in the latter part of this reign, when some good magistrates were gone, and still more the justices of the peace, among whom a high-church ardour was prevalent, crowding the gaols with the pious confessors of puritanism.[259] Under so rigorous an administration of statute law, it was not unnatural to take the shelter offered by the declaration of indulgence; but the dissenters never departed from their ancient abhorrence of popery and arbitrary power, and embraced the terms of reconciliation and alliance which the church, in its distress, held out to them. A scheme of comprehension was framed under the auspices of Archbishop Sancroft before the revolution. Upon the completion of the new settlement it was determined, with the apparent concurrence of the church, to grant an indulgence to separate conventicles, and at the same time, by enlarging the terms of conformity, to bring back those whose differences were not irreconcilable within the pale of the Anglican communion.

The act of toleration was passed with little difficulty, though not without the murmurs of the bigoted churchmen.[260] It exempts from the penalties of existing statutes against separate conventicles, or absence from the established worship, such as should take the oath of allegiance, and subscribe the declaration against popery, and such ministers of separate congregations as should subscribe the thirty-nine articles of the church of England except three, and part of a fourth. It gives also an indulgence to quakers without this condition. Meeting-houses are required to be registered, and are protected from insult by a penalty. No part of this toleration is extended to papists or to such as deny the Trinity. We may justly deem this act a very scanty measure of religious liberty; yet it proved more effectual through the lenient and liberal policy of the eighteenth century; the subscription to articles of faith, which soon became as obnoxious as that to matters of a more indifferent nature, having been practically dispensed with, though such a genuine toleration as Christianity and philosophy alike demand, had no place in our statute-book before the reign of George III.

It was found more impracticable to overcome the prejudices which stood against any enlargement of the basis of the English church. The bill of comprehension, though nearly such as had been intended by the primate, and conformable to the plans so often in vain devised by the most wise and moderate churchmen, met with a very cold reception. Those among the clergy who disliked the new settlement of the Crown (and they were by far the greater part), played upon the ignorance and apprehensions of the gentry. The king's suggestion in a speech from the throne, that means should be found to render all protestants capable of serving him in Ireland, as it looked towards a repeal or modification of the test act, gave offence to the zealous churchmen.[261] A clause proposed in the bill for changing the oaths of supremacy and allegiance, in order to take away the necessity of receiving the sacrament in the church as a qualification for office, was rejected by a great majority of the Lords, twelve whig peers protesting.[262] Though the bill of comprehension proposed to parliament went no farther than to leave a few scrupled ceremonies at discretion, and to admit presbyterian ministers into the church without pronouncing on the invalidity of their former ordination, it was mutilated in passing through the upper house; and the Commons, after entertaining it for a time, substituted an address to the king, that he would call the house of convocation "to be advised with in ecclesiastical matters."[263] It was, of course, necessary to follow this recommendation. But the lower house of convocation, as might be foreseen, threw every obstacle in the way of the king's enlarged policy. They chose a man as their prolocutor who had been forward in the worst conduct of the university of Oxford. They displayed in everything a factious temper, which held the very names of concession and conciliation in abhorrence. Meanwhile a commission of divines, appointed under the great seal, had made a revision of the liturgy, in order to eradicate everything which could give a plausible ground of offence, as well as to render the service more perfect. Those of the high-church faction had soon seceded from this commission; and its deliberations were doubtless the more honest and rational for their absence. But, as the complacence of parliament towards ecclesiastical authority had shown that no legislative measure could be forced against the resistance of the lower house of convocation, it was not thought expedient to lay before that synod of insolent priests the revised liturgy, which they would have employed as an engine of calumny against the bishops and the Crown. The scheme of comprehension, therefore, fell absolutely and finally to the ground.[264]

_Schism of the non-jurors._--A similar relaxation of the terms of conformity would, in the reign of Elizabeth, or even at the time of the Savoy conferences, have brought back so large a majority of dissenters that the separation of the remainder could not have afforded any colour of alarm to the most jealous dignitary. Even now it is said that two-thirds of the nonconformists would have embraced the terms of reunion. But the motives of dissent were already somewhat changed, and had come to turn less on the petty scruples of the elder puritans and on the differences in ecclesiastical discipline, than on a dislike to all subscriptions of faith and compulsory uniformity. The dissenting ministers, accustomed to independence, and finding not unfrequently in the contributions of their disciples a better maintenance than court favour and private patronage have left for diligence and piety in the establishment, do not seem to have much regretted the fate of this measure. None of their friends, in the most favourable times, have ever made an attempt to renew it. There are indeed serious reasons why the boundaries of religious communion should be as widely extended as is consistent with its end and nature; and among these the hardship and detriment of excluding conscientious men from the ministry is not the least. Nor is it less evident that from time to time, according to the progress of knowledge and reason, to remove defects and errors from the public service of the church, even if they have not led to scandal or separation, is the bounden duty of its governors. But none of these considerations press much on the minds of statesmen; and it was not to be expected that any administration should prosecute a religious reform for its own sake, at the hazard of that tranquillity and exterior unity which is in general the sole end for which they would deem such a reform worth attempting. Nor could it be dissembled that, so long as the endowments of a national church are supposed to require a sort of politic organisation within the commonwealth, and a busy spirit of faction for their security, it will be convenient for the governors of the state, whenever they find this spirit adverse to them, as it was at the revolution, to preserve the strength of the dissenting sects as a counterpoise to that dangerous influence which, in protestant churches, as well as that of Rome, has sometimes set up the interest of one order against that of the community. And though the church of England made a high vaunt of her loyalty, yet, as Lord Shrewsbury told William of the tories in general, he must remember that he was not their king; of which indeed he had abundant experience.

A still more material reason against any alteration in the public liturgy and ceremonial religion at that feverish crisis, unless with a much more decided concurrence of the nation than could be obtained, was the risk of nourishing the schism of the non-jurors. These men went off from the church on grounds merely political, or at most on the pretence that the civil power was incompetent to deprive bishops of their ecclesiastical jurisdiction; to which none among the laity, who did not adopt the same political tenets, were likely to pay attention. But the established liturgy was, as it is at present, in the eyes of the great majority, the distinguishing mark of the Anglican church, far more indeed than episcopal government, whereof so little is known by the mass of the people that its abolition would make no perceptible difference in their religion. Any change, though for the better, would offend those prejudices of education and habit, which it requires such a revolutionary commotion of the public mind as the sixteenth century witnessed, to subdue, and might fill the jacobite conventicles with adherents to the old church. It was already the policy of the non-juring clergy to hold themselves up in this respectable light, and to treat the Tillotsons and Burnets as equally schismatic in discipline and unsound in theology. Fortunately, however, they fell into the snare which the established church had avoided; and deviating, at least in their writings, from the received standard of Anglican orthodoxy, into what the people saw with most jealousy, a sort of approximation to the church of Rome, gave their opponents an advantage in controversy, and drew farther from that part of the clergy who did not much dislike their political creed. They were equally injudicious and neglectful of the signs of the times, when they promulgated such extravagant assertions of sacerdotal power as could not stand with the regal supremacy, or any subordination to the state. It was plain, from the writings of Leslie and other leaders of their party, that the mere restoration of the house of Stuart would not content them, without undoing all that had been enacted as to the church from the time of Henry VIII.; and thus the charge of innovation came evidently home to themselves.[265]

The convention parliament would have acted a truly politic, as well as magnanimous, part in extending this boon, or rather this right, of religious liberty to the members of that unfortunate church, for whose sake the late king had lost his throne. It would have displayed to mankind that James had fallen, not as a catholic, nor for seeking to bestow toleration on catholics, but as a violator of the constitution. William, in all things superior to his subjects, knew that temporal, and especially military fidelity, would be in almost every instance proof against the seductions of bigotry. The Dutch armies have always been in a great measure composed of catholics; and many of that profession served under him in the invasion of England. His own judgment for the repeal of the penal laws had been declared even in the reign of James. The danger, if any, was now immensely diminished; and it appears in the highest degree probable that a genuine toleration of their worship, with no condition but the oath of allegiance, would have brought over the majority of that church to the protestant succession, so far at least as to engage in no schemes inimical to it. The wiser catholics would have perceived that, under a king of their own faith, or but suspected of an attachment to it, they must continue the objects of perpetual distrust to a protestant nation. They would have learned that conspiracy and jesuitical intrigue could but keep alive calumnious imputations, and diminish the respect which a generous people would naturally pay to their sincerity and their misfortune. Had the legislators of that age taken a still larger sweep, and abolished at once those tests and disabilities, which, once necessary bulwarks against an insidious court, were no longer demanded in the more republican model of our government, the jacobite cause would have suffered, I believe, a more deadly wound than penal statutes and double taxation were able to inflict. But this was beyond the philosophers, how much beyond the statesmen, of the time!

_Laws against Roman catholics._--The tories, in their malignant hatred of our illustrious monarch, turned his connivance at popery into a theme of reproach.[266] It was believed, and probably with truth, that he had made to his catholic allies promises of relaxing the penal laws; and the jacobite intriguers had the mortification to find that William had his party at Rome, as well as her exiled confessor of St. Germains. After the peace of Ryswick many priests came over, and showed themselves with such incautious publicity as alarmed the bigotry of the House of Commons, and produced the disgraceful act of 1700 against the growth of popery.[267] The admitted aim of this statute was to expel the catholic proprietors of land, comprising many very ancient and wealthy families, by rendering it necessary for them to sell their estates. It first offers a reward of £100 to any informer against a priest exercising his functions, and adjudges the penalty of perpetual imprisonment. It requires every person educated in the popish religion, or professing the same, within six months after he shall attain the age of eighteen years, to take the oaths of allegiance and supremacy, and subscribe the declaration set down in the act of Charles II. against transubstantiation and the worship of saints; in default of which he is incapacitated, not only to purchase, but to inherit or take lands under any devise or limitation. The next of kin being a protestant shall enjoy such lands during his life.[268] So unjust, so unprovoked a persecution is the disgrace of that parliament. But the spirit of liberty and tolerance was too strong for the tyranny of the law; and this statute was not executed according to its purpose. The catholic land-holders neither renounced their religion, nor abandoned their inheritances. The judges put such constructions upon the clause of forfeiture as eluded its efficacy; and, I believe, there were scarce any instances of a loss of property under this law. It has been said, and I doubt not with justice, that the catholic gentry, during the greater part of the eighteenth century, were as a separated and half proscribed class among their equals, their civil exclusion hanging over them in the intercourse of general society;[269] but their notorious, though not unnatural, disaffection to the reigning family will account for much of this, and their religion was undoubtedly exercised with little disguise or apprehension. The laws were perhaps not much less severe and sanguinary than those which oppressed the protestants of France; but, in their actual administration, what a contrast between the government of George II. and Louis XV., between the gentleness of an English court of king's bench, and the ferocity of the parliaments of Aix and Thoulouse!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

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

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

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

[155] _Parl. Hist._ 345.

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

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

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

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

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

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

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

[161] The necessity of excluding men so conscientious, and several of whom had very recently sustained so conspicuously the brunt of the battle against King James, was very painful; and motives of policy, as well as generosity, were not wanting in favour of some indulgence towards them. On the other hand, it was dangerous to admit such a reflection on the new settlement, as would be cast by its enemies, if the clergy, especially the bishops, should be excused from the oath of allegiance. The House of Lords made an amendment in the act requiring this oath, dispensing with it in the case of ecclesiastical persons, unless they should be called upon by the privy-council. This, it was thought, would furnish a security for their peaceable demeanour, without shocking the people and occasioning a dangerous schism. But the Commons resolutely opposed this amendment, as an unfair distinction, and derogatory to the king's title. _Parl. Hist._ 218; Lords' Journals, 17 April 1689. The clergy, however, had six months more time allowed them, in order to take the oath, than the possessors of lay offices.

Upon the whole, I think the reasons for deprivation greatly preponderated. Public prayers for the king by name form part of our liturgy; and it was surely impossible to dispense with the clergy's reading them, which was as obnoxious as the oath of allegiance. Thus the beneficed priests must have been excluded; and it was hardly required to make an exception for the sake of a few bishops, even if difficulties of the same kind would not have occurred in the exercise of their jurisdiction, which hangs upon, and has a perpetual reference to, the supremacy of the Crown.

The king was empowered to reserve a third part of the value of their benefices to any twelve of the recusant clergy. 1 W. & M. c. 8, s. 16. But this could only be done at the expense of their successors; and the behaviour of the nonjurors, who strained every nerve in favour of the dethroned king, did not recommend them to the government. The deprived bishops, though many of them through their late behaviour were deservedly esteemed, cannot be reckoned among the eminent characters of our church for learning or capacity. Sancroft, the most distinguished of them, had not made any remarkable figure; and none of the rest had any pretensions to literary credit. Those who filled their places were incomparably superior. Among the non-juring clergy a certain number were considerable men; but, upon the whole, the well-affected part of the church, not only at the revolution, but for fifty years afterwards, contained by far its most useful and able members. Yet the effect of this expulsion was highly unfavourable to the new government; and it required all the influence of a latitudinarian school of divinity, led by Locke, which was very strong among the laity under William, to counteract it.

[162] Burnet; Ralph, 174, 179.

[163] The parliamentary debates are full of complaints as to the mismanagement of all things in Ireland. These might be thought hasty or factious; but Marshal Schomberg's letters to the king yield them strong confirmation. Dalrymple, Appendix, 26, etc. William's resolution to take the Irish war on himself saved not only that country but England. Our own constitution was won on the Boyne. The star of the house of Stuart grew pale for ever on that illustrious day, when James displayed again the pusillanimity which had cost him his English crown. Yet the best friends of William dissuaded him from going into Ireland, so imminent did the peril appear at home. Dalrymple, _Id._ 97. "Things," says Burnet, "were in a very ill disposition towards a fatal turn."

[164] See the debates on this subject in the _Parliamentary History_, which is a transcript from Anchitel Grey. The whigs, or at least some hot-headed men among them, were certainly too much actuated by a vindictive spirit, and consumed too much time on this necessary bill.

[165] The prominent instance of Sawyer's delinquency, which caused his expulsion, was his refusal of a writ of error to Sir Thomas Armstrong. _Parl. Hist._ 516. It was notorious that Armstrong suffered by a legal murder; and an attorney-general in such a case could not be reckoned as free from personal responsibility as an ordinary advocate who maintains a cause for his fee. The first resolution had been to give reparation out of the estates of the judges and prosecutors to Armstrong's family; which was, perhaps rightly, abandoned.

The House of Lords, who, having a power to examine upon oath, are supposed to sift the truth in such enquiries better than the Commons, were not remiss in endeavouring to bring the instruments of Stuart tyranny to justice. Besides the committee appointed on the very second day of the convention, 23 Jan. 1689, to investigate the supposed circumstances of suspicion as to the death of Lord Essex (a committee renewed afterwards, and formed of persons by no means likely to have abandoned any path that might lead to the detection of guilt in the late king), another was appointed in the second session of the same parliament (Lords' Journals, 2nd Nov. 1689) "to consider who were the advisers and prosecutors of the _murders_ of Lord Russell, Col. Sidney, Armstrong, Cornish, etc., and who were the advisers of issuing out writs of _quo warrantos_ against corporations, and who were their regulators, and also who were the public assertors of the dispensing power." The examinations taken before this committee are printed in the Lords' Journals, 20th Dec. 1699; and there certainly does not appear any want of zeal to convict the guilty. But neither the law nor the proofs would serve them. They could establish nothing against Dudley North, the tory sheriff of 1683, except that he had named Lord Russell's panel himself; which, though irregular and doubtless ill-designed, had unluckily a precedent in the conduct of the famous whig sheriff, Slingsby Bethell; a man who, like North, though on the opposite side, cared more for his party than for decency and justice. Lord Halifax was a good deal hurt in character by this report; and never made a considerable figure afterwards. Burnet, 34. His mortification led him to engage in an intrigue with the late king, which was discovered; yet, I suspect that, with his usual versatility, he again abandoned that cause before his death. Ralph, 467. The act of grace (2 W. & M. c. 10) contained a small number of exceptions, too many indeed for its name; but probably there would have been difficulty in prevailing on the houses to pass it generally; and no one was ever molested afterwards on account of his conduct before the revolution.

[166] _Parl. Hist._ 508 _et post_; Journals, 2nd and 10th Jan. 1689, 1690. Burnet's account is confused and inaccurate, as is very commonly the case: he trusted, I believe, almost entirely to his memory. Ralph and Somerville are scarce ever candid towards the whigs in this reign.

[167] _Parl. Hist._ 150.

[168] Burnet, 13; Ralph, 138, 194. Some of the lawyers endeavoured to persuade the house that the revenue having been granted to James for his life, devolved to William during the natural life of the former; a technical subtlety against the spirit of the grant. Somers seems not to have come into this; but it is hard to collect the sense of speeches from Grey's memoranda. _Parl. Hist._ 139. It is not to be understood that the tories universally were in favour of a grant for life, and the whigs against it. But as the latter were the majority, it was in their power, speaking of them as a party, to have carried the measure.

[169] _Parl. Hist._ 187.

[170] _Parl. Hist._ 193.

[171] _Parl. Hist._ iv. 1359.

[172] Hatsell's _Precedents_, iii. 80 _et alibi_; Hargrave's _Juridical Arguments_, i. 394.

[173] 1 W. & M. sess. 2, c. 2. This was intended as a provisional act "for the preventing all disputes and questions, concerning the collecting, levying, and assuring the public revenue due and payable in the reigns of the late kings Charles II. and James II., whilst the better settling the same is under the consideration of the present parliament."

[174] 2 W. & M. c. 3. As a mark of respect, no doubt, to the king and queen, it was provided that, if both should die, the successor should only enjoy this revenue of excise till December 1683. In the debate on this subject in the new parliament, the tories, except Seymour, were for settling the revenue during the king's life; but many whigs spoke on the other side. _Parl. Hist._ 552. The latter justly urged that the amount of the revenue ought to be well known before they proceed to settle it for an indefinite time. The tories, at that time, had great hopes of the king's favour, and took this method of securing it.

[175] Burnet, 35.

[176] See the _Somers Tracts_, but still more the collection of _State Tracts_ in the time of William III., in three volumes folio. These are almost entirely on the whig side; and many of them, as I have intimated in the text, lean so far toward republicanism as to assert the original sovereignty of the people in very strong terms, and to propose various changes in the constitution, such as a greater equality in the representation. But I have not observed any one which recommends, even covertly, the abolition of hereditary monarchy.

[177] The sudden dissolution of this parliament cost him the hearts of those who had made him king. Besides several temporary writings, especially the "Impartial Inquiry" of the Earl of Warrington, an honest and intrepid whig (Ralph, ii. 188), we have a letter from Mr. Wharton (afterwards Marquis of Wharton) to the king, in Dalrymple, Appendix, p. 80, on the change in his councils at this time, written in a strain of bold and bitter expostulation, especially on the score of his employing those who had been the servants of the late family, alluding probably to Godolphin, who was indeed open to much exception. "I wish," says Lord Shrewsbury in the same year, "you could have established your party upon the moderate and honest-principled men of both factions; but, as there be a necessity of declaring, I shall make no difficulty to own my sense that your majesty and the government are much more safe depending upon the whigs, whose designs, if any against, are improbable, and remoter, than with the tories, who many of them, questionless, would bring in King James; and the very best of them, I doubt, have a regency still in their heads; for, though I agree them to be the properest instruments to carry the prerogative high, yet I fear they have so unreasonable a veneration for monarchy, as not altogether to approve the foundation yours is built upon." Shrewsbury _Correspond._ 15.

[178] _Parl. Hist_. 575; Ralph, 194; Burnet, 41. Two remarkable protests were entered on the journals of the Lords on occasion of this bill; one by the whigs, who were outnumbered on a particular division, and another by the tories on the passing of the bill. They are both vehemently expressed, and are among the not very numerous instances wherein the original whig and tory principles have been opposed to each other. The tory protest was expunged by order of the house. It is signed by eleven peers and six bishops, among whom were Stillingfleet and Lloyd. The whig protest has but ten signatures. The convention had already passed an act for preventing doubts concerning their own authority (1 W. & M. stat. 1, c. 1), which could of course have no more validity than they were able to give it. This bill had been much opposed by the tories. _Parl. Hist._ v. 122.

In order to make this clearer, it should be observed that the convention which restored Charles II. not having been summoned by his writ, was not reckoned by some royalist lawyers capable of passing valid acts; and consequently all the statutes enacted by it were confirmed by the authority of the next. Clarendon lays it down as undeniable that such confirmation was necessary. Nevertheless, this objection having been made in the court of King's Bench to one of their acts, the judges would not admit it to be disputed; and said, that the act being made by King, Lords, and Commons, they ought not now to pry into any defects of the circumstances of calling them together, neither would they suffer a point to be stirred, wherein the estates of so many were concerned. Heath _v._ Pryn, 1 Ventris, 15.

[179] Great indulgence was shown to the assertors of indefeasible right. The Lords resolved, that there should be no penalty in the bill to disable any person from sitting and voting in either house of parliament. Journals, May 5, 1690. The bill was rejected in the Commons by 192 to 178. Journals, April 26; _Parl. Hist._ 594; Burnet, 41, _ibid._

[180] Some English subjects took James's commission, and fitted out privateers which attacked our ships. They were taken, and it was resolved to try them as pirates; when Dr. Oldys, the king's advocate, had the assurance to object that this could not be done, as if James had still the prerogatives of a sovereign prince by the law of nations. He was of course turned out, and the men hanged; but this is one instance among many of the difficulty under which the government laboured through the unfortunate distinction of _facto_ and _jure_. Ralph, 423. The boards of customs and excise were filled by Godolphin with Jacobites. _Shrewsb. Corresp._ 51.

[181] The name of Carmarthen is perpetually mentioned among those whom the late king reckoned his friends. Macpherson's _Papers_, i. 457, etc. Yet this conduct was so evidently against his interest that we may perhaps believe him insincere. William was certainly well aware that an extensive conspiracy had been formed against his throne. It was of great importance to learn the persons involved in it and their schemes. May we not presume that Lord Carmarthen's return to his ancient allegiance was feigned, in order to get an insight into the secrets of that party? This has already been conjectured by Somerville (p. 395) of Lord Sunderland, who is also implicated by Macpherson's publication, and doubtless with higher probability; for Sunderland, always a favourite of William, could not without insanity have plotted the restoration of a prince he was supposed to have betrayed. It is evident that William was perfectly master of the cabals of St. Germain's. That little court knew it was betrayed; and the suspicion fell on Lord Godolphin. Dalrymple, 189. But I think Sunderland and Carmarthen more likely.

I should be inclined to suspect that by some of this double treachery the secret of Princess Anne's repentant letter to her father reached William's ears. She had come readily, or at least without opposition, into that part of the settlement which postponed her succession after the death of Mary, for the remainder of the king's life. It would indeed have been absurd to expect that William was to descend from his throne in her favour; and her opposition could not have been of much avail. But, when the civil list and revenue came to be settled, the tories made a violent effort to secure an income of £70,000 a year to her and her husband. _Parl. Hist._ 492. As this on one hand seemed beyond all fair proportion to the income of the Crown, so the whigs were hardly less unreasonable in contending that she should depend altogether on the king's generosity; especially as by letters patent in the late reign, which they affected to call in question, she had a revenue of about £30,000. In the end, the house resolved to address the king, that he would make the princess's income £50,000 in the whole. This, however, left an irreconcilable enmity, which the artifices of Marlborough and his wife were employed to aggravate. They were accustomed, in the younger sister's little court, to speak of the queen with severity, and of the king with rude and odious epithets. Marlborough, however, went much farther. He brought that narrow and foolish woman into his own dark intrigues with St. Germain's. She wrote to her father, whom she had grossly, and almost openly, charged with imposing a spurious child as Prince of Wales, supplicating his forgiveness, and professing repentance for the part she had taken. _Life of James_, 476; Macpherson's _Papers_, i. 241.

If this letter, as cannot seem improbable, became known to William, we shall have a more satisfactory explanation of the queen's invincible resentment toward her sister than can be found in any other part of their history. Mary refused to see the princess on her death-bed; which shows more bitterness than suited her mild and religious temper, if we look only to the public squabbles about the Churchills as its motive. Burnet, 90; _Conduct of Duchess of Marlborough_, 41. But the queen must have deeply felt the unhappy, though necessary, state of enmity in which she was placed towards her father. She had borne a part in a great and glorious enterprise, obedient to a woman's highest duty; and had admirably performed those of the station to which she was called; but still with some violation of natural sentiments, and some liability to the reproach of those who do not fairly estimate the circumstances of her situation:

Infelix! utcunque ferant ea facta minores.

Her sister, who had voluntarily trod the same path, who had misled her into belief of her brother's illegitimacy, had now, from no real sense of duty, but out of pique and weak compliance with cunning favourites, solicited in a clandestine manner the late king's pardon, while his malediction resounded in the ears of the queen. This feebleness and duplicity made a sisterly friendship impossible.

As for Lord Marlborough, he was among the first, if we except some Scots renegades, who abandoned the cause of the revolution. He had so signally broken the ties of personal gratitude in his desertion of the king on that occasion, that, according to the severe remark of Hume, his conduct required for ever afterwards the most upright, the most disinterested, and most public-spirited behaviour to render it justifiable. What then must we think of it, if we find in the whole of this great man's political life nothing but ambition and rapacity in his motives, nothing but treachery and intrigue in his means! He betrayed and abandoned James, because he could not rise in his favour without a sacrifice that he did not care to make; he abandoned William and betrayed England, because some obstacles stood yet in the way of his ambition. I do not mean only, when I say that he betrayed England, that he was ready to lay her independence and liberty at the feet of James II. and Louis XIV.; but that in one memorable instance he communicated to the court of St. Germain's, and through that to the court of Versailles, the secret of an expedition against Brest, which failed in consequence with the loss of the commander and eight hundred men. Dalrymple, iii. 13; _Life of James_, 522; Macpherson, i. 487. In short, his whole life was such a picture of meanness and treachery that one must rate military services very high indeed to preserve any esteem for his memory.

The private memoirs of James II. as well as the papers published by Macpherson show us how little treason, and especially a double treason, is thanked or trusted by those whom it pretends to serve. We see that neither Churchill nor Russell obtained any confidence from the banished king. Their motives were always suspected; and something more solid than professions of loyalty was demanded, though at the expense of their own credit. James could not forgive Russell for saying that, if the French fleet came out, he must fight. Macpherson, i. 242. If Providence in its wrath had visited this island once more with a Stuart restoration, we may be sure that these perfidious apostates would have been no gainers by the change.

[182] During William's absence in Ireland in 1690, some of the whigs conducted themselves in a manner to raise suspicions of their fidelity; as appears by those most interesting letters of Mary published by Dalrymple, which display her entire and devoted affection to a husband of cold and sometimes harsh manners, but capable of deep and powerful attachment, of which she was the chief object. I have heard that the late proprietor of these royal letters was offended, but not judiciously, with their publication; and that the black box of King William that contained them has disappeared from Kensington. The names of the Duke of Bolton, his son the Marquis of Winchester, the Earl of Monmouth, Lord Montagu, and Major Wildman, occur as objects of the queen's or her minister's suspicion. Dalrymple, Appendix, 107, etc. But Carmarthen was desirous to throw odium on the whigs; and none of these, except on one occasion Lord Winchester, appear to be mentioned in the Stuart Papers. Even Monmouth, whose want both of principle and sound sense might cause reasonable distrust, and who lay at different times of his life under this suspicion of a Jacobite intrigue, is never mentioned in Macpherson, or any other book of authority, within my recollection. Yet it is evident generally that there was a disaffected party among the whigs, or, as in the Stuart Papers they were called, republicans, who entertained the baseless project of restoring James upon terms. These were chiefly what were called compounders, to distinguish them from the thorough-paced royalists, or old tories. One person whom we should least suspect is occasionally spoken of as inclined to a king whom he had been ever conspicuous in opposing--the Earl of Devonshire; but the Stuart agents often wrote according to their wishes rather than their knowledge; and it seems hard to believe what is not rendered probable by any part of his public conduct.

[183] This fact apparently rests on good authority; it is repeatedly mentioned in the Stuart Papers, and in the _Life of James_. Yet Shrewsbury's letter to William, after Fenwick's accusation of him, seems hardly consistent with the king's knowledge of the truth of that charge in its full extent. I think that he served his master faithfully as secretary, at least after some time, though his warm recommendation of Marlborough "who has been with me since this news [the failure of the attack on Brest] to offer his services with all the expressions of duty and fidelity imaginable" (_Shrewsbury Correspondence_, 47), is somewhat suspicious, aware as he was of that traitor's connections.

[184] Commons' Journals, Nov. 28 _et post_; Dalrymple, iii. 11; Ralph, 346.

[185] _Id._ Jan. 11, 1692-3.

[186] Burnet says, "the elections of parliament (1690) went generally for men who would probably have declared for King James, if they could have known how to manage matters for him."--P. 41. This is quite an exaggeration; though the tories, some of whom were at this time in place, did certainly succeed in several divisions. But parties had now begun to be split; the Jacobite tories voting with the malcontent whigs. Upon the whole, this House of Commons, like the next which followed it, was well affected to the revolution settlement and to public liberty. Whig and tory were becoming little more than nicknames.

[187] Macpherson's _State Papers_, i. 459. These were all tories, except three or four. The great end James and his adherents had in view, was to persuade Louis into an invasion of England; their representations therefore are to be taken with much allowance, and in some cases we know them to be false; as when James assures his brother of Versailles that three parts at least in four of the English clergy had not taken the oaths to William. _Id._ 409.

[188] Macpherson, 433. _Somers Tracts_, xi. 94. This is a pamphlet of the time, exposing the St. Germain faction, and James's unwillingness to make concessions. It is confirmed by the most authentic documents.

[189] Ralph, 350; _Somers Tracts_, x. 211.

[190] Many of these Jacobite tracts are printed in the Somers Collection, vol. x. The more we read of them, the more cause appears for thankfulness that the nation escaped from such a furious party. They confess, in general, very little error or misgovernment in James, but abound with malignant calumnies on his successor. The name of Tullia is repeatedly given to the mild and pious Mary. The best of these libels is styled "Great Britain's just complaint" (p. 429), by Sir James Montgomery, the false and fickle proto-apostate of whiggism. It is written with singular vigour, and even elegance; and rather extenuates than denies the faults of the late reign.

[191] Ralph, 418. See the _Life of James_, 501. It contains chiefly an absolute promise of pardon, a declaration that he would protect and defend the church of England as established by law, and secure to its members all the churches, universities, schools, and colleges, together with its immunities, rights, and privileges, a promise not to dispense with the test, and to leave the dispensing power in other matters to be explained and limited by parliament, to give the royal assent to bills for frequent parliaments, free elections, and impartial trials, and to confirm such laws made under the present usurpation as should be tendered to him by parliament. "The king," he says himself, "was sensible he should be blamed by several of his friends for submitting to such hard terms; nor was it to be wondered at, if those who knew not the true condition of his affairs were scandalised at it; but after all he had nothing else to do."--P. 505. He was so little satisfied with the articles in this declaration respecting the church of England, that he consulted several French and English divines, all of whom, including Bossuet, after some difference, came to an opinion that he could not in conscience undertake to protect and defend an erroneous church. Their objection, however, seems to have been rather to the expression than the plain sense; for they agreed that he might promise to leave the protestant church in possession of its endowments and privileges. Many too of the English Jacobites, especially the non-juring bishops, were displeased with the declaration, as limiting the prerogative; though it contained nothing which they were not clamorous to obtain from William. P. 514. A decisive proof how little that party cared for civil liberty, and how little would have satisfied them at the revolution, if James had put the church out of danger! The next paragraph is remarkable enough to be extracted for the better confirmation of what I have just said. "By this the king saw he had out-shot himself more ways than one in this declaration; and therefore what expedient he would have found in case he had been restored, not to put a force either upon his conscience or honour, does not appear, because it never came to a trial; but this is certain, his church of England friends absolved him beforehand, and sent him word, that if he considered the preamble, and the very terms of the declaration, he was not bound to stand by it, or to put it out verbatim as it was worded; that the changing some expressions and ambiguous terms, so long as what was principally aimed at had been kept to, could not be called a receding from his declaration, no more than a new edition of a book can be counted a different work, though corrected and amended. And indeed the preamble showed his promise was conditional, which they not performing, the king could not be tied; for my Lord Middleton had writ, that, if the king signed the declaration, those who took it engaged to restore him in three or four months after; the king did his part, but their failure must needs take off the king's future obligation."

In a Latin letter, the original of which is written in James's own hand, to Innocent XII., dated from Dublin, Nov. 26, 1689, he declares himself "Catholicam fidem reducere in tria regna statuisse." _Somers Tracts_, x. 552. Though this may have been drawn up by a priest, I suppose the king understood what he said. It appears also by Lord Balcarras's _Memoir_, that Lord Melfort had drawn up the declaration as to indemnity and indulgence in such a manner, that the king might break it whenever he pleased. _Somers Tracts_, xi. 517.

[192] The protestants were treated with neglect and jealousy, whatever might have been their loyalty, at the court of James, as they were afterwards as that of his son. The incorrigibility of this Stuart family is very remarkable. Kennet, pp. 638 and 738, enumerates many instances. Sir James Montgomery, the Earl of Middleton, and others, were shunned at the court of St. Germain as guilty of this sole crime of heresy, unless we add that of wishing for legal securities.

[193] James himself explicitly denies, in the extracts from his _Life_, published by Macpherson, all participation in the scheme of killing William, and says that he had twice rejected proposals for bringing him off alive; though it is not true that he speaks of the design with indignation, as some have pretended. It was very natural, and very conformable to the principles of kings, and others besides kings, in former times, that he should have lent an ear to this project; and as to James's moral and religious character it was not better than that of Clarendon, whom we know to have countenanced similar designs for the assassination of Cromwell. In fact, the received code of ethics has been improved in this respect. We may be sure at least, that those who ran such a risk for James's sake expected to be thanked and rewarded in the event of success. I cannot therefore agree with Dalrymple, who says that nothing but the fury of party could have exposed James to this suspicion. Though the proof seems very short of conviction, there are some facts worthy of notice. 1. Burnet positively charges the late king with privity to the conspiracy of Grandval, executed in Flanders for a design on William's life, 1692 (p. 95); and this he does with so much particularity, and so little hesitation, that he seems to have drawn his information from high authority. The sentence of the court-martial on Grandval also alludes to James's knowledge of the crime (_Somers Tracts_, x. 580), and mentions expressions of his, which, though not conclusive, would raise a strong presumption in any ordinary case. 2. William himself, in a memorial intended to have been delivered to the ministers of all the allied powers at Ryswick, in answer to that of James (_Id._ xi. 103; Ralph, 730), positively imputes to the latter repeated conspiracies against his life; and he was incapable of saying what he did not believe. In the same memorial he shows too much magnanimity to assert that the birth of the Prince of Wales was an imposture. 3. A paper by Charnock, undeniably one of the conspirators, addressed to James, contains a marked allusion to William's possible death in a short time; which even Macpherson calls a delicate mode of hinting the assassination-plot to him. Macpherson, _State Papers_, i. 519. Compare also _State Trials_, xii. 1323, 1327, 1329. 4. Somerville, though a disbeliever in James's participation, has a very curious quotation from Lamberti, tending to implicate Louis XIV. (p. 428); and we can hardly suppose that he kept the other out of the secret. Indeed, the crime is greater and less credible in Louis than in James. But devout kings have odd notions of morality; and their confessors, I suppose, much the same. I admit, as before, that the evidence falls short of conviction; and that the verdict, in the language of Scots law, should be Not Proven; but it is too much for our Stuart apologists to treat the question as one absolutely determined. Documents may yet appear that will change its aspect.

I leave the above paragraph as it was written before the publication of M. Mazure's valuable _History of the Revolution_. He has therein brought to light a commission of James to Crosby, in 1693, authorising and requiring him "to seize and secure the person of the Prince of Orange, and to bring him before us, taking to your assistance such other of our faithful subjects in whom you may place confidence." _Hist. de la Révol._ iii. 443. It is justly observed by M. Mazure, that Crosby might think no renewal of his authority necessary in 1696 to do that which he had been required to do in 1693. If we look attentively at James's own language, in Macpherson's extracts, without much regarding the glosses of Innes, it will appear that he does not deny in express terms that he had consented to the attempt in 1696 to seize the Prince of Orange's person. In the commission to Crosby he is required not only to do this, but _to bring him before the king_. But is it possible to consider this language as anything else than an euphemism for assassination?

Upon the whole evidence, therefore, I now think that James was privy to the conspiracy, of which the natural and inevitable consequence must have been foreseen by himself; but I leave the text as it stood, in order to show that I have not been guided by any prejudice against his character.

[194] _Parl. Hist._ 991. Fifteen peers and ninety-two commoners refused. The names of the latter were circulated in a printed paper, which the house voted to be a breach of their privilege, and destruction of the freedom and liberties of parliament. Oct. 30, 1696. This, however, shows the unpopularity of their opposition.

[195] Burnet; see the notes on the Oxford edition. Ralph, 692. The motion for bringing in the bill, Nov. 6, 1696, was carried by 169 to 61; but this majority lessened at every stage: and the final division was only 189 to 156. In the Lords it passed by 68 to 61; several whigs, and even the Duke of Devonshire, then lord steward, voting in the minority. _Parl. Hist._ 996-1154. Marlborough probably made Prince George of Denmark support the measure. _Shrewsbury Correspondence_, 449. Many remarkable letters on the subject are to be found in this collection; but I warn the reader against trusting any part of the volume except the letters themselves. The editor has, in defiance of notorious facts, represented Sir John Fenwick's disclosures as false; and twice charges him with prevarication (p. 404), using the word without any knowledge of its sense, in declining to answer questions put to him by members of the House of Commons, which he could not have answered without inflaming the animosity that sought his life.

It is said in a note of Lord Hardwicke on Burnet, that "the king, before the session, had Sir John Fenwick brought to the cabinet council, where he was present himself. But Sir John would not explain his paper." See also _Shrewsbury Correspondence_, 419 _et post_. The truth was, that Fenwick, having had his information at second-hand, could not prove his assertions, and feared to make his case worse by repeating them.

[196] Godolphin, who was then first commissioner of the treasury, not much to the liking of the whigs, seems to have been tricked by Sunderland into retiring from office on this occasion. _Id._ 415. Shrewsbury, secretary of state, could hardly be restrained by the king and his own friends from resigning the seals as soon as he knew of Fenwick's accusation. His behaviour shows either a consciousness of guilt, or an inconceivable cowardice. Yet at first he wrote to the king, pretending to mention candidly all that had passed between him and the Earl of Middleton, which in fact amounted to nothing. P. 147. This letter, however, seems to show that a story which has been several times told, and is confirmed by the biographer of James II. and by Macpherson's _Papers_, that William compelled Shrewsbury to accept office in 1693, by letting him know that he was aware of his connection with St. Germains, is not founded in truth. He could hardly have written in such a style to the king with that fact in his way. Monmouth, however, had some suspicion of it; as appears by the hints he furnished to Sir J. Fenwick towards establishing the charges. P. 450. Lord Dartmouth, full of inveterate prejudices against the king, charges him with personal pique against Sir John Fenwick, and with instigating members to vote for the bill. Yet it rather seems that he was, at least for some time, by no means anxious for it. _Shrewsbury Correspondence_; and compare Coxe's _Life of Marlborough_, i. 63.

[197] _Life of James_, ii. 558.

[198] The debt at the king's death amounted to £16,394,702, of which above three millions were to expire in 1710. Sinclair's _Hist. of Revenue_, i. 425 (third edition).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[212] In Feb. 1692.

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

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

[215] _Id._ Nov. 1.

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

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

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

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

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

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

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

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

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

[224] Lords' Journals.

[225] _Parl. Hist._ 754.

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

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

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

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

[229] Hale, 121.

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

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

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

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

[233] Hale, 123; Foster, 213.

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

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

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

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

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

[239] 7 W. 3, c. 3, § 4; Foster, 257.

[240] Foster, 234.

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

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

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

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

[245] _Id._ v. 675.

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

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

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

[249] _State Trials_, xii. 1051.

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

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

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

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

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

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

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

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

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

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

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

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

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

[262] _Parl. Hist._ 196.

[263] _Id._ 212, 216.

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

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

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

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

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

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

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

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

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

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

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

[275] _Life of Clarendon_, 319.

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

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

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

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

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

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

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

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

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

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

[284] 11 & 12 W. 3, c. 2, § 50.

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

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

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

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

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

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

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

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

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