Constitutional History of England Volume II Part 30

The expulsion of Withens, their own member, for promoting one of these addresses, though a violent measure, came in point of law within their acknowledged authority.[776] But it was by no means a generally received opinion in that age that the House of Commons had an unbounded jurisdiction, directly or indirectly, over their const.i.tuents. The lawyers, being chiefly on the side of prerogative, inclined at least to limit very greatly this alleged power of commitment for breach of privilege or contempt of the house. It had very rarely, in fact, been exerted, except in cases of serving legal process on members or other molestation, before the long parliament of Charles I.; a time absolutely discredited by one party, and confessed by every reasonable man to be full of innovation and violence. That the Commons had no right of judicature was admitted; was it compatible to principles of reason and justice, that they could, merely by using the words contempt or breach of privilege in a warrant, deprive the subject of that liberty which the recent statute of habeas corpus had secured against the highest ministers of the Crown? Yet one Thompson, a clergyman at Bristol, having preached some virulent sermons, wherein he had traduced the memory of Hampden for refusing the payment of s.h.i.+p-money, and spoken disrespectfully of Queen Elizabeth, as well as insulted those who pet.i.tioned for the sitting of parliament, was sent for in custody of the serjeant to answer at the bar for his high misdemeanour against the privileges of that house; and was afterwards compelled to find security for his forthcoming to answer to an impeachment voted against him on these strange charges.[777] Many others were brought to the bar, not only for the crime of abhorrence, but for alleged misdemeanours still less affecting the privileges of parliament, such as remissness in searching for papists. Sir Robert Cann, of Bristol, was sent for in custody of the serjeant-at-arms, for publicly declaring that there was no popish, but only a presbyterian plot. A general panic, mingled with indignation, was diffused through the country, till one Stawell, a gentleman of Devons.h.i.+re, had the courage to refuse compliance with the speaker's warrant; and the Commons, who hesitated at such a time to risk an appeal to the ordinary magistrates, were compelled to let this contumacy go unpunished. If indeed we might believe the journals of the house, Stawell was actually in custody of the serjeant, though allowed a month's time on account of sickness. This was most probably a subterfuge to conceal the truth of the case.[778]

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

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

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

This very dangerous and apparently unfounded theory, broached upon the occasion of Fitzharris's impeachment by the Earl of Nottingham, never obtained reception; and was rather intimated than avowed in the vote of the Lords, that he should be proceeded against at common law.

But after the revolution, the Commons having impeached Sir Adam Blair and some others of high treason, a committee was appointed to search for precedents on this subject; and after full deliberation, the House of Lords came to a resolution, that they would proceed on the impeachments.[783] The inadvertent position therefore of Blackstone,[784] that a commoner cannot be impeached for high treason, is not only difficult to be supported upon ancient authorities, but contrary to the latest determination of the supreme tribunal.

_Proceedings against Shaftesbury and College._--No satisfactory elucidation of the strange libel for which Fitzharris suffered death has yet been afforded. There is much probability in the supposition that it was written at the desire of some in the court, in order to cast odium on their adversaries; a very common stratagem of unscrupulous partisans.[785] It caused an impression unfavourable to the whigs in the nation. The court made a dexterous use of that extreme credulity, which has been supposed characteristic of the English, though it belongs at least equally to every other people.

They seized into their hands the very engines of delusion that had been turned against them. Those perjured witnesses, whom Shaftesbury had hallooed on through all the infamy of the popish plot, were now arrayed in the same court to swear treason and conspiracy against him.[786] Though he escaped by the resoluteness of his grand jury, who refused to find a bill of indictment on testimony, which they professed themselves to disbelieve, and which was probably false; yet this extraordinary deviation from the usual practice did harm rather than otherwise to the general cause of his faction. The judges had taken care that the witnesses should be examined in open court, so that the jury's partiality, should they reject such positive testimony, might become glaring. Doubtless it is, in ordinary cases, the duty of a grand juror to find a bill upon the direct testimony of witnesses, where they do not contradict themselves or each other, and where their evidence is not palpably incredible or contrary to his own knowledge.[787] The oath of that inquest is forgotten, either where they render themselves, as seems too often the case, the mere conduit-pipes of accusation, putting a prisoner in jeopardy upon such slender evidence as does not call upon him for a defence; or where, as we have sometimes known in political causes, they frustrate the ends of justice by rejecting indictments which are fully substantiated by testimony. Whether the grand jury of London, in their celebrated ignoramus on the indictment preferred against Shaftesbury, had sufficient grounds for their incredulity, I will not pretend to determine.[788] There was probably no one man among them, who had not implicitly swallowed the tales of the same witnesses in the trials for the plot. The nation however in general, less bigoted, or at least more honest in their bigotry, than those London citizens, was staggered by so many depositions to a traitorous conspiracy, in those who had pretended an excessive loyalty to the king's person.[789] Men unaccustomed to courts of justice are naturally p.r.o.ne to give credit to the positive oaths of witnesses. They were still more persuaded, when, as in the trial of College at Oxford, they saw this testimony sustained by the approbation of a judge (and that judge a decent person who gave no scandal), and confirmed by the verdict of a jury.

The gross iniquity practised towards the prisoner in that trial was not so generally bruited as his conviction.[790] There is in England a remarkable confidence in our judicial proceedings, in part derived from their publicity, and partly from the indiscriminate manner in which jurors are usually summoned. It must be owned that the administration of the two last Stuarts was calculated to show how easily this confiding temper might be the dupe of an insidious ambition.

_Triumph of the court._--The king's declaration of the reasons that induced him to dissolve the last parliament, being a manifesto against the late majority of the House of Commons, was read in all churches.

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

The whigs, meantime, so late in the heyday of their pride, lay, like the fallen angels, prostrate upon the fiery lake. The scoffs and gibes of libellers, who had trembled before the resolutions of the Commons, were showered upon their heads. They had to fear, what was much worse than the insults of these vermin, the perjuries of mercenary informers suborned by their enemies to charge false conspiracies against them, and sure of countenance from the contaminated benches of justice. The court, with an artful policy, though with detestable wickedness, secured itself against its only great danger, the suspicion of popery, by the sacrifice of Plunket, the t.i.tular archbishop of Dublin.[792]

The execution of this worthy and innocent person cannot be said to have been extorted from the king in a time of great difficulty, like that of Lord Stafford. He was coolly and deliberately permitted to suffer death, lest the current of loyalty, still sensitive and suspicious upon the account of religion, might be somewhat checked in its course. Yet those who heap the epithets of merciless, inhuman, sanguinary, on the whig party for the impeachment of Lord Stafford, in whose guilt they fully believed, seldom mention, without the characteristic distinction of "good-natured," that sovereign, who signed the warrant against Plunket, of whose innocence he was a.s.sured.[793]

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

After the fall of the capital, it was not to be expected that towns less capable of defence should stand out. Informations _quo warranto_ were brought against several corporations; and a far greater number hastened to antic.i.p.ate the a.s.sault by voluntary surrenders. It seemed to be recognised as law by the judgment against London, that any irregularity or misuse of power in a corporation might incur a sentence of forfeiture; and few could boast that they were invulnerable at every point. The judges of a.s.size in their circuits prost.i.tuted their influence and authority to forward this and every other encroachment of the Crown. Jefferies, on the northern circuit in 1684, to use the language of Charles II.'s most unblus.h.i.+ng advocate, "made all the charters, like the walls of Jericho, fall down before him, and returned laden with surrenders, the spoils of towns."[796]

They received instead, new charters, framing the const.i.tution of these munic.i.p.alities on a more oligarchical model, and reserving to the Crown the first appointment of those who were to form the governing part of the corporation. These changes were gradually brought about in the last three years of Charles's reign, and in the beginning of the next.

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

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

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

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

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

Sir Thomas Armstrong, who had fled to Holland on the detection of the plot, was given up by the States. A sentence of outlawry, which had pa.s.sed against him in his absence, is equivalent, in cases of treason, to a conviction of the crime. But the law allows the s.p.a.ce of one year, during which the party may surrender himself to take his trial.

Armstrong, when brought before the court, insisted on this right, and demanded a trial. Nothing could be more evident, in point of law, than that he was ent.i.tled to it. But Jefferies, with inhuman rudeness, treated his claim as wholly unfounded, and would not even suffer counsel to be heard in his behalf. He was executed accordingly without trial.[807] But it would be too prolix to recapitulate all the instances of brutal injustice, or of cowardly subserviency, which degraded the English lawyers of the Stuart period, and never so infamously as in these last years of Charles II. From this prost.i.tution of the tribunals, from the intermission of parliaments, and the steps taken to render them in future mere puppets of the Crown, it was plain that all const.i.tutional securities were at least in abeyance; and those who felt themselves most obnoxious, or whose spirit was too high to live in an enslaved country, retired to Holland as an asylum in which they might wait the occasion of better prospects, or, at the worst, breathe an air of liberty.

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

_High tory principles of the clergy._--It is not my intention to censure, in any strong sense of the word, the Anglican clergy at this time for their a.s.sertion of absolute non-resistance, so far as it was done without calumny and insolence towards those of another way of thinking, and without self-interested adulation of the ruling power.

Their error was very dangerous, and had nearly proved destructive of the whole const.i.tution; but it was one which had come down with high recommendation, and of which they could only perhaps be undeceived, as men are best undeceived of most errors, by experience that it might hurt themselves. It was the tenet of their homilies, their canons, their most distinguished divines and casuists; it had the apparent sanction of the legislature in a statute of the present reign. Many excellent men, as was shown after the revolution, who had never made use of this doctrine as an engine of faction or private interest, could not disentangle their minds from the arguments or the authority on which it rested. But by too great a number it was eagerly brought forward to serve the purposes of arbitrary power, or at best to fix the wavering protestantism of the court by professions of unimpeachable loyalty. To this motive, in fact, we may trace a good deal of the vehemence with which the non-resisting principle had been originally advanced by the church of England under the Tudors, and was continually urged under the Stuarts. If we look at the tracts and sermons published by both parties after the restoration, it will appear manifest that the Romish and Anglican churches bade, as it were, against each other for the favour of the two royal brothers. The one appealed to its acknowledged principles, while it denounced the pretensions of the holy see to release subjects from their allegiance, and the bold theories of popular government which Mariana and some other Jesuits had promulgated. The others retaliated on the first movers of the reformation, and expatiated on the usurpation of Lady Jane Grey, not to say Elizabeth, and the republicanism of Knox or Calvin.

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

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

These treatises of Filmer obtained a very favourable reception. We find the patriarchal origin of government frequently mentioned in the publications of this time as an undoubted truth. Considered with respect to his celebrity rather than his talents, he was not, as some might imagine, too ign.o.ble an adversary for Locke to have combated.

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

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

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

THE TEMPLE PRESS, PRINTERS, LETCHWORTH

FOOTNOTES:

[696] Temple's _Memoirs_.

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

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

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

36.

[700] "There were two things," says Bishop Parker, "which, like Circe's cup, bewitched men and turned them into brutes; viz. popery and French interest. If men otherwise sober heard them once, it was sufficient to make them run mad. But, when those things were laid aside, their behaviour to his majesty was with a becoming modesty." P.

244. Whenever the court seemed to fall in with the national interests on the two points of France and popery, many of the country party voted with them, though more numerous than their own. Temple, p. 458.

See too Reresby, p. 25 _et alibi_.

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

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

Meanwhile, schemes of comprehension were sometimes on foot; and the prelates affected to be desirous of bringing about an union; but Morley and Sheldon frustrated them all. Baxter, 156; Kennet, 326; Parker, 25. The bishops, however, were not uniformly intolerant.

Croft, Bishop of Hereford, published, about 1675, a tract that made some noise, ent.i.tled "The Naked Truth," for the purpose of moderating differences. It is not written with extraordinary ability; but is very candid and well designed, though conceding so much as to scandalise his brethren. _Somers Tracts_, vii. 268; _Biogr. Brit._ art. Croft; where the book is extravagantly over praised. Croft was one of the few bishops who, being then very old, advised his clergy to read James II.'s declaration in 1687; thinking, I suppose, though in those circ.u.mstances erroneously, that toleration was so good a thing, it was better to have it irregularly than not at all.

[703] Charles received 500,000 crowns for the long prorogation of parliament, from Nov. 1675 to Feb. 1677. In the beginning of the year 1676, the two kings bound themselves by a formal treaty (to which Danby and Lauderdale, but not Coventry or Williamson, were privy), not to enter on any treaties but by mutual consent; and Charles promised, in consideration of a pension, to prorogue or dissolve parliament, if they should attempt to force such treaties upon him. Dalrymple, p. 99.

Danby tried to break this off, but did not hesitate to press the French cabinet for the money; and 200,000 was paid. The Prince of Orange came afterwards through Rouvigny to a knowledge of this secret treaty. P. 117.

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

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

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

Pp. 50, 53, 59.

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

[707] See what Temple says of this (p. 460): the king raised 20,000 men in the spring of 1678, and seemed ready to go into the war; but all was spoiled by a vote, on Clarges's motion, that no money should be granted till satisfaction should be made as to religion. This irritated the king so much that he determined to take the money which France offered him; and he afterwards almost compelled the Dutch to sign the treaty; so much against the Prince of Orange's inclinations, that he has often been charged, though unjustly, with having fought the battle of St. Denis after he knew that the peace was concluded.

Danby also, in his vindication (published in 1679, and again in 1710; see _State Trials_, ii. 634), lays the blame of discouraging the king from embarking in the war on this vote of the Commons. And the author of the _Life of James II._ says very truly, that the Commons "were in reality more jealous of the king's power than of the power of France; for, notwithstanding all their former warm addresses for hindering the growth of the power of France, when the king had no army, now that he had one, they pa.s.sed a vote to have it immediately disbanded; and the factious party, which was then prevalent among them, made it their only business to be rid of the duke, to pull down the ministers, and to weaken the Crown."--P. 512.

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

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

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